Muralidhar, J. 1 .

Both writ petitions challenge an order dated 16th June 2010 passed by the Competition Commission of India (CCI) under Section 26(1) of the Competition Act, 2002 (CA).

The background to the present petitions is that by an order dated 13th February 2009, the Monopolies and Restrictive Trade Practices Commission (MRTP Commission) took cognizance, under Section 11(1) of the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act), of reports in the print and visual media that airline operators, including the Petitioners herein, had collectively increased air fares and withdrawn the promotional fares as a result of which additional costs were imposed on the consumer and competition in the industry was reduced.

The MRTP Commission formed a prima facie opinion that the alleged practice was a restrictive trade practice as defined under Section 33(1)(d) and 33(1)(j) of the MRTP Act.

Consequently in exercise of its powers under Regulation 18 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1991 (MRTP Regulations), the MRTP Commission ordered a preliminary investigation into the matter by the Director General (Investigation Registration) DG(IR) and further directed that the copy of the information material collected should be submitted to the Commission within sixty days thereafter.

The case was registered as Restrictive Trade Practices Enquiry No. 5 of 2009 (RTPE).

On 27th April 2009 the Office of the DG(IR) sent letters to the Petitioners asking them to furnish information and documents to enable the DG(IR) to undertake the necessary investigation.

The subject matter of the said communication was Restrictive Trade Practices - Investigation under Section 11(1) of the MRTP Act, 1969.

The Petitioner Inter Globe Aviation Limited (IAL) replied to the said letter on 29th May 2009 providing certain information.

Likewise some of the other Petitioners also replied to the said notice.

On 28th August 2009 a notification was issued by the Ministry of Corporate Affairs, Government of India repealing the MRTP Act with effect from 1st September 2009.

On 14th October 2009 the President promulgated the Competition (Amendment) Ordinance, 2009 amending Sections 66(1), 66(3), 66(4) and 66(5) of the CA.

This later was enacted as the Competition (Amendment) Act, 1999 (CAA 1999).

On 4th March 2010 the RTPE Case Number 5 of 2009 was transferred by the DG(IR) to the CCI under Section 66(6) of the CA.

Thereafter on 10th June 2010 the CCI passed the impugned order under Section 26(1) of the CA stating that the case had been received on transfer under Section 66(6) of the CA from the Office of the DG(IR), MRTP Commission.

The order recorded a summary of some of the responses received to the notice dated 24th April 2009.

In para 26 of the impugned order it was observed that at this stage the matter was transferred to the Commission under Section 66(6) CA and was considered by the CCI at its meeting on 10th June 2010.

The CCI then stated in its impugned order that there exists a prima-facie case for making reference to DG to make an investigation into the matter.

After completing the investigation, the DG shall submit his report within 90 days of the communication of the Commissions order.

On 19th July 2010, a notice was sent by the DG(IR) under Section 41 read with Section 36(2) CA to the Petitioner seeking information.

On 20th August 2010 the Petitioner IAL wrote to the Secretary, CCI requesting for copies of the information documents as also the order passed by the CCI on the basis of which investigations were initiated.

On 30th August 2010 the Petitioner IAL inspected the file of RTPE Number 5 of 2009 and requested the Secretary, CCI to provide copies of the inspected information documents.

This was provided on 6th September 2010 by the DG(IR) stating that a reply must be filed by 10th September 2010.

Further time was granted by the CCI to the Petitioners on 13th September 2010 to file a reply failing which the Petitioners would face penal action under Section 43 read with Section 45 CA.

On 15th September 2010 the IAL obtained a copy of the impugned order dated 16th June 2010 of the CCI.

A further seven days time to file a reply was given by the CCI on 22nd September 2010.

On 1st October 2010 the present petitions were filed in this Court.

The Court has heard the submissions of Mr. N.K. Kaul, the learned Senior Counsel as well as Mr. Amit Kapur, learned Counsel appearing for the Petitioners.

The first submission is that the CCI had no jurisdiction whatsoever to deal with RTPE Number 05 of 2009 because this was a matter pending before the erstwhile MRTP Commission.

It is submitted that under Section 66(3) CA all matters which were pending before the MRTP Commission have to be transferred to the Competition Appellate Tribunal (CAT) whereas in the instant case the matter was erroneously transferred by the DG(IR) to the CCI under Section 66(6) CA.

The submission is that since the MRTP Commission had suo motu taken cognizance of the alleged restrictive trade practice under Section 11(1) of the MRTP Act, and further directed the DG(IR) to investigate and submit a report to it, this was a matter pending before the MRTP Commission.

Therefore, even if the investigation by the DG(IR) was incomplete on the date of the repeal of the MRTP Act followed by the notification of the amended Section 66 of the CA, the matter had to be necessarily placed before the CAT for further directions to the DG(IR).

In order to appreciate the above submission, a reference may be made to Section 11 of the MRTP Act as well as Section 66 of the CA.

These provisions read as under: Section 11 MRTP Act 1 1 .

Investigation by Director General before issue of process in certain cases.

The Commission may, before issuing any process requiring the attendance of the person against whom an inquiry (other than an inquiry upon an application by the Director General) may be made under Section 10, by an order, require the Director General to make, or cause to be made, a preliminary investigation in such manner as it may direct and submit a report to the Commission to enable it to satisfy itself as to whether or not the matter requires to be inquired into.

The Director General may, upon his own knowledge or information or on a complaint made to him, make, or cause to be made, a preliminary investigation in such manner as he may think fit to enable him to satisfy himself as to whether or not an application should be made by him to the Commission under Section 10.

For the purpose of conducting the preliminary investigation under Sub-section (1), or Sub-section (2), as the case may be, the Director General or any other person making the investigation shall have the same powers as may be exercised by an Inspector under Sub-section (2) of Section 44.

Any order or requisition made by a person making an investigation under Sub-section (1), or Sub-section (2), shall be enforced in the same manner as if it were an order or requisition made by an Inspector appointed under Section 240 or Section 240A of the Companies Act, 1956 (1 of 1956), and any contravention of such order or requisition shall be punishable in the same manner as if it were an order or requisition made by an Inspector appointed under the said Section 240 or Section 240.

Section 66 CA 6 6 .

Repeal and saving.

(1) The Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) is hereby repealed and the Monopolies and Restrictive Trade Practices Commission established under Sub-section (1) of Section 5 of the said Act (hereafter referred to as the repealed Act) shall stand dissolved: (1A) The repeal of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) shall, however, not affect,- (a) the previous operation of the Act so repealed or anything duly done or suffered thereunder or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed or (c) any penalty, confiscation or punishment incurred in respect of any contravention under the Act so repealed or (d) any proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, confiscation or punishment as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty, confiscation or punishment may be imposed or made as if that Act had not been repealed.

On the dissolution of the Monopolies and Restrictive Trade Practices Commission, the person appointed as the Chairman of the Monopolies and Restrictive Trade Practices Commission and every other, person appointed as Member and Director General of Investigation and Registration, Additional, Joint, Deputy, or Assistant Directors General of Investigation and Registration and any officer and other employee of that Commission and holding office as such immediately before such dissolution shall vacate their respective offices and such Chairman and other Members shall be entitled to claim compensation not entitled to claim compensation not exceeding three months pay and allowances for the premature termination of term of their office or of any contract of service: Provided that the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission appointed on deputation basis to the Monopolies and Restrictive Trade Practices Commission, shall, on such dissolution, stand reverted to his parent cadre, Ministry or Department, as the case may be: Provided further that the Director-General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors-General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission employed on regular basis by the Monopolies and Restrictive Trade Practices Commission, shall become, on and from such dissolution, the officer and employee, respectively, of the Competition Commission of India or the Appellate Tribunal, in such manner as may be specified by the Central Government, with the same rights and privileges as to pension, gratuity and other like matters as would have been admissible to him if the rights in relation to such Monopolies and Restrictive Trade Practices Commission had not been transferred to, and vested in, the Competition Commission of India or the Appellate Tribunal, as the case may be, and shall continue to do so unless and until his employment in the Competition Commission of India or the Appellate Tribunal, as the case may be, is duly terminated or until his remuneration, terms and conditions of employment are duly altered by the Competition Commission of India or the Appellate Tribunal, as the case may be: Provided also that notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947), or in any other law for the time being in force, the transfer of the services of any Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee, employed in the Monopolies and Restrictive Trade Practices Commission, to the Competition Commission of India or the Appellate Tribunal, as the case may be shall not entitle such Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority: Provided also that where the Monopolies and Restrictive Trade Practices Commission has established a provident fund, superannuation, welfare or other fund for the benefit of the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or the officers and other employees employed in the Monopolies and Restrictive Trade Practices Commission, the monies relatable to the officers and other employees whose services have been transferred by or under this Act to the Competition Commission of India or the Appellate Tribunal, as the case may be, shall, out of the monies standing, on the dissolution of the Monopolies and Restrictive Trade Practices Commission to the credit of such provident fund, superannuation, welfare or other fund, stand transferred to, and vest in, the Competition Commission of India or the Appellate Tribunal, as the case may be, and such monies which stand so transferred shall be dealt with by the said Commission or the Tribunal, as the case may be, in such manner as may be prescribed.

All cases pertaining to monopolistic trade practices or restrictive trade practices pending (including such cases, in which any unfair trade practice has also been alleged), before the Monopolies and Restrictive Trade Practices Commission shall, on the commencement of the Competition (Amendment) Act, 2009, stand transferred to the Appellate Tribunal and shall be adjudicated by the Appellate Tribunal in accordance with the provisions of the repealed Act as if that Act had not been repealed.

Explanation.- For the removal of doubts, it is hereby declared that all cases referred to in this sub-section, Sub-section (4) and Sub- section (5) shall be deemed to include all applications made for the losses or damages under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) as it stood before its repeal Subject to the provisions of Sub-section (3), all cases pertaining to unfair trade practices other than those referred to in Clause (x) of Sub-section (1) of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission immediately before the commencement of the Competition (Amendment) Act, 2009, shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission shall dispose of such cases as if they were cases filed under that Act: Provided that the National Commission may, if it considers appropriate, transfer any case transferred to it under this sub-section, to the concerned State Commission established under Section 9 of the Consumer Protection Act, 1986 (68 of 1986) and that State Commission shall dispose of such case as if it was filed under that Act.

Provided further that all the cases relating to the unfair trade practices pending, before the National Commission under this sub-section, on or before the date on which the Competition (Amendment) Bill, 2009 receives the assent of the President, shall, on and from that date, stand transferred to the Appellate Tribunal and be adjudicated by the Appellate Tribunal in accordance with the provisions of the repealed Act as if that Act had not been repealed.

All cases pertaining to unfair trade practices referred to in Clause of Sub-section (1) of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission shall, on the commencement of the Competition (Amendment) Act, 2009, stand transferred to the Appellate Tribunal and the Appellate Tribunal shall dispose of such cases as if they were cases filed under that Act.

All investigations or proceedings, other than those relating to unfair trade practices, pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.

All investigations or proceedings, relating to unfair trade practices, other than those referred to in Clause (x) of Sub-section (1) of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.

Provided that all investigations or proceedings, relating to unfair trade practices pending before the National Commission, on or before the date on which the Competition (Amendment) Bill, 2009 receives the assent of the President shall, on and from that date, stand transferred to the Appellate Tribunal and the Appellate Tribunal may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.

All investigations or proceedings relating to unfair trade practices referred to in Clause (x) of Sub-section (1) of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969), and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India and the Competition Commission of India may conduct or order for conduct of such investigation in the manner as it deems fit.

Save as otherwise provided under Sub-sections (3) to (8), all cases or proceedings pending before the Monopolies and Restrictive Trade Practices Commission shall abate.

The mention of the particular matters referred to in Sub- sections (3) to (8) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.

The order dated 30th August 2009 passed by the MRTP Commission is traceable to Section 11(1) of the MRTP Act.

Indeed the MRTP Commission took notice of the reports and directed the DG(IR) to make a preliminary investigation and submit a report.

To that extent, the learned Counsel for the Petitioners are right that in the impugned order dated 16th June 2010 the CCI has erroneously observed that the DG(IR) MRTP Commission undertook the investigation under Section 11(2) of the MRTP Act.

Nothing much however turns on this.

Once the MRTP Commission directed the DG(IR) to undertake investigations, the matter could no longer be said to be pending before the MRTP Commission.

The investigation undertaken by the DG(IR) was obviously incomplete and there was no occasion for the DG(IR) to place any report of investigation before the MRTP Commission in terms of Section 11(1) of the MRTP Act.

Turning to Section 66 of the CA, which is a repeal and savings clause, it appears that the opening words of Section 66(3) is all cases pending before the MRTP Commission shall, on the commencement of the CAA 2009 stand transferred to the CAT, and shall be adjudicated by the Appellate Tribunal in accordance with the provisions of the repealed Act as if that Act had not been repealed.

It is plain that only cases which were pending before the MRTP Commission for adjudication as on the date of the repeal of the MRTP Act and the commencement of the CAA 2009 would stand transferred to the CAT for adjudication.

The word cases and the word adjudication are indicative of the types of matters pending before the MRTP Commission which were meant to be transferred to the CAT. 1 2 .

Under the MRTP Act, the MRTP Commission combined in itself both the inquisitorial as well as adversarial adjudicatory functions.

In its inquisitorial role, the MRTP Commission was empowered to refer matters of investigation to the DG(IR) which was, in a sense, its extended arm.

At this stage it was meant to be a fact or information gathering exercise.

If on the basis of such information gathered and placed before it by the DG(IR), the MRTP Commission came to a prima facie view that there was restrictive trade practice or unfair trade practice, as the case may be, then it can proceed further in the matter.

It was at that stage, after forming the prima facie view, that the matter can proceed to get crystallized into a case it is possible that on the report of the DG(IR), the MRTP Commission forms an opinion that there is no need to proceed further.

In that event there will be no case.

In the considered view of this Court, as far as the present Petitioners are concerned, the investigations against them by the DG(IR) remained incomplete and the matter did not crystallize into a case before the MRTP Commission, which could be stated to be pending as on the date of the CAA.

Consequently there is no merit in the contention that as far as the Petitioners are concerned, it was incumbent on the DG(IR) of the CCI to transfer the cases straight to the CAT and not to the CCI.

A comparison of Section 66(3) CA with Section 66(6) CA shows the contrast between the kinds of matters before the MRTP Commission and the DG(IR).

While Section 66(3) CA talks of cases pending before the MRTP Commission, Section 66(6) CA talks of all investigations or proceedings pending before the DG(IR).

The expression all investigations or proceedings is meant to encompass even investigations and proceedings before the DG(IR) which remained incomplete as of the date of the CAA 1999.

It was sought to be urged by Mr. Kaul that Section 66(6) CA was meant to cover only such cases where the DG(IR) took suo motu notice under Section 11(2) of the MRTP Act and investigations were incomplete at the time of the CAA 2009.

There is nothing in the language of Section 66(6) CA to suggest this.

The resultant position is that all investigations and proceedings which were pending before the DG(IR), MRTP Commission as on the date of CAA 2009, whether by way of a reference made to it by the MRTP Commission under Section 11(1) or taken up by the DG(IR) suo motu under Section 11(2) of the MRTP Act, would stand transferred to the CCI in terms of Section 66(6) of the CA.

That is what has happened in the present case.

There is, therefore, no illegality in the action of the DG, CCI in transferring the investigation pending before the DG(IR), MRTP Commission to the CCI.

Before concluding this part, it may be observed that the organizational structure which was envisaged under the MRTP Act with the MRTP Commission combining in itself both the inquisitorial and adversarial functions has undergone a significant change in the CA.

There is now a two-tier structure with the CCI performing a partly inquisitorial function and a partly quasi-adjudicatory function.

The CAT, however, performs an appellate adjudicatory function.

The interpretation placed on the provisions by this Court is in light of this altered structure under the CA.

It was urged that the CCI was acting unreasonably in declining to provide the Petitioners with the information sought for the purposes of filing replies.

A reference was made to a communication dated 1st October 2010 received from the Assistant Director General of CCI by the IAL stating that IALs insistence on obtaining complete information documents from the CCI for responding to the queries raised was not justified and that it should file its reply within five days failing which penal action would be initiated.

This Court only wishes to observe that it will be open to the Petitioners to file replies before the CCI, within the time granted by the CCI, on the basis of whatever information is available with them.

If any of the Petitioners suffer any prejudice on account of the non-furnishing of any information to them by the CCI, they could well raise such a contention before the CCI which will then deal with such contention and pass orders thereon before proceeding to take any action in terms of Section 43 read with Section 45 CA.

In any event, for any alleged violation of the procedure by the CCI it is not as if the Petitioners would be without a remedy.

Such a situation is taken care of within the four corners of the CA itself.

It was finally urged that the Petitioners should be granted some more time to file replies to the show cause notice of the CCI.

It is for the Petitioners to make that request to the CCI which will consider such request on its merits before proceeding to take any further action under Sections 43 read with Section 45 CA. 2 0 .

This Court finds no ground having been made out by the Petitioners for interdicting the proceedings before the CCI.

The writ petitions are dismissed with the above observations but in the circumstances with no orders as to costs.

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Rajiv Sahai Endlaw, J. 1 .

This petition under Article 226 of the Constitution of India impugns the order dated 3rd February, 2015 of the respondent Number 1 Competition Commission of India (CCI) in case Number 59/2011 holding no violation of the provisions of the Competition Act, 2002 having been committed, inspite of the Director General (DG) of the CCI in its Report having recommended that there is contravention of the provisions of the Act.

The petition was entertained and notice thereof issued.

After notice, when the petition was listed before this Court on 12th February, 2016, I had of my own enquired from the counsels whether not such an order was appealable before the Competition Appellate Tribunal (COMPAT).

The counsels drew attention to Section 53A(1)(a) of the Competition Act which empowers COMPAT to hear and dispose of appeals against any direction issued or decision made or order passed by the Commission under Sub-sections (2) and (6) of Section 26 It was further pointed out that Sub-section (2) of Section 26 provides for CCI, on receipt a reference from the Central Government or a State Government or a Statutory Authority or information received under Section 19, closing the matter forthwith if of the opinion that there exists no prima facie case.

It was stated that CCI in the present case did not so close the matter but rather was of the opinion that there existed a prima facie case and in exercise of powers under Sub-section (1) of Section 26 had directed the DG to cause an investigation to be made in the matter.

It was further pointed out that DG submitted its Report recommending that there was contravention as averred in the information however CCI, after consideration of the objections and suggestions of the parties concerned has vide the impugned order dated 3rd February, 2015 differed from the findings of the DG on issue of contravention of provisions of Sections 3(3)(a) (b) of the Competition Act and held that sufficient evidence is not available on record which warrants a finding of contravention of the provisions of the Act and accordingly closed the matter.

It is argued that Sub-section (6) of Section 26 against a direction, decision or order whereunder the remedy of appeal to COMPAT has been provided is as under:-- 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.

i.e. provides for a contingency where the CCI agrees with the recommendation of the DG and closes the matter and not the contingency where CCI has disagreed with the recommendation of the DG, as has happened in the present case.

It was argued that since the remedy of appeal is not provided, the petition under Article 226 of the Constitution would be maintainable against such an order.

Though the counsel for the petitioner on 12th February, 2016 also contended that the said question is no longer res integra in view of the judgment of the Supreme Court in Competition Commission of India v. Steel Authority of India Limited  : (2010) 10 SCC 744 but to me it prima facie did not appear so.

I had on 12th February, 2016 itself drawn the attention of the counsels to Vinod Kumar Chowdhry v. Narain Devi Taneja  : (1980) 2 SCC 120 where the Supreme Court, though in the context of Section 25B(8) of the Delhi Rent Control Act, 1958 held that the words order for recovery of possession of premises have to be construed as an order deciding the application for recovery of possession of premises because there can be no discrimination between the remedies available to the two parties to a litigation and which will render the provision unconstitutional and because of the overall scheme of the Act.

Attention of the counsels was also invited to State of Maharashtra v. Marwanjee P. Desai  : (2002) 2 SCC 318 on the interpretation of Section 7 of the Bombay Government Premises (Eviction) Act, 1955.

Finding that there is no specific sub-section in Section 26 dealing with contingency of the CCI disagreeing with the Report of the DG and closing the case as has happened in the present case and being of the prima facie view that by the reasoning in the two judgments aforesaid of the Supreme Court and further citing V.C. Shukla State  : (1980) Supp.

SCC 92 holding that right of appeal has to be liberally construed, I had on 12th February, 2016 expressed prima facie opinion that even against an order where CCI disagrees with the report of the DG and closes the case, an appeal to COMPAT lies and the writ petition would thus not be maintainable.

The counsels who were not prepared on the said aspect were asked to address this Court first thereon.

In the light of the aforesaid turn of events which the hearing took, the occasion for any of the respondents filing counter affidavits or calling for the same did not arise.

However the respondent Number 1 CCI only even before the hearing on 12th February, 2016 had filed a counter affidavit.

On 28th March, 2016, the counsel for the petitioner and the senior counsel for the respondent Number 15 M section Oberoi Realty Limited also contending that appeal does not lie to COMPAT were heard and the matter adjourned to 21st April, 2016 for arguments of other counsels for the respondents supporting the contention of the petitioner that against the impugned order no appeal lies before COMPAT.

On 21st April, 2016 it was pointed out by some of the counsels that with the coming into force on 26th March, 2016 of the Real Estate (Regulation and Development) Act, 2016 (RERD Act), the remedy of the petitioner in any case was not before the CCI but before the Real Estate Regulatory Authority (RERA) constituted under the said Act.

The counsel for the petitioner sought time to consider the said aspect.

Accordingly, the matter was adjourned to today to enable the counsel for the petitioner to consider.

It was also the contention of the senior counsel for the respondent Number 18 M section Puravankara Project Limited on that date that irrespective of the legal question, there was no prima facie merit in the challenge by the petitioner to the impugned order of CCI and for this reason also this Court should not go into the legal question.

It was yet further contended that the legal question, as I had raised, was also pending before the Supreme Court.

Today, the counsel for the petitioner has stated that according to him the jurisdiction for the grievance with which the petitioner had submitted the information to CCI and finding prima facie merit wherein CCI had ordered investigation lies exclusively with the CCI under the Competition Act and RERD Act is prospective in nature and the petitioner presses this petition.

Per contra, the senior counsel for the respondent Number 18 has contended that even if this Court were to hold that this petition is maintainable, in any case on facts there is no merit in the petition.

It was contended that since there are as many as 25 respondents in this petition, all represented through Advocates and wanting to address this Court on the legal question aforesaid of availability of appeal against the impugned order to COMPAT, this Court rather than spending time on hearing on the said aspect may first hear the counsels on the factual merit if any of the petition and only if convinced therewith should proceed to go into the said aspect.

Being agreeable with the last of the aforesaid contention of the senior counsel for the respondent Number 18, the counsels for the petitioner and the senior counsel for the respondent Number 18 have been heard on the factual merits of the petition.

The petitioner, alleging contravention by the respondent Number 2 M section Tulip Infratech Pvt.

Limited (Tulip) and by respondents Number 3 4 namely Director, Town Country Planning, Chandigarh and Haryana Urban Development Authority (HUDA) of the provisions of Section 3 of the Act, lodged information under Section 19(1)(a) of the Competition Act with the CCI.

It was the case of the petitioner that various enterprises engaged in real estate development business including the respondent No. 2 Tulip, by an arrangement understanding amongst themselves, adopt a anti- competitive modus operandi practices.

Reliance in this regard was placed on a statement of the Chairman of the respondent Number 5 Confederation of Real Estate Developers Association of India (CREDAI) as reported in the newspaper of its members signing a code of conduct including qua the actual usage area to the buyers, compensation in case of project delays and other clauses of buyers agreements.

It was further the case of the petitioner that various enterprises engaged in real estate development have agreements understanding amongst themselves resulting in the flat buyers agreement which the purchasers of real estate from the said developers are compelled to sign being one sided and containing arbitrary clauses which were exploitative of the buyers.

As aforesaid, CCI passed an order under Section 26(1) directing DG to investigate the conduct of residential apartment complex builders including of respondent Number 2 Tulip and respondent Number 5 CREDAI.

The senior counsel for the respondent Number 18 has handed over a copy of the separate opinion of the Member, Technical of CCI not finding a prima facie merit within the meaning of Section 26(1) of the Act in the complaint information submitted by the petitioner inter alia observing that the intention of the Competition Act is not to put each and every commonly prevailing business practice detrimental to consumers under the Competition Act scanner citing the example of practice followed by shops, of goods once sold will not be returned, it was observed that every practise is not capable of being treated as a practice carried on if there is no indication of meeting of the minds and it was held that if neither the prices are getting jointly fixed nor outcome is getting jointly controlled nor market is being consciously shared nor any bid being rigged through practice then even that conscious and jointly decided practice cannot come in the purview of Section 3(3).

In accordance with the order under Section 26(1) of majority of the members of CCI, as aforesaid, DG submitted a Report of certain practices being commonly carried on by the builders developers of residential apartments by way of tacit agreement understanding informal co-operation and having caused implications for consumers and resultantly impacting determining the final prices of apartments in contravention of Section 3(3)(a) of the Competition Act and controlling the provisions of services in contravention of Section 3(3)(b) of the Act.

However DG did not find any contravention of the provisions of the Competition Act by the respondent Number 5 CREDAI.

CCI, vide its order dated 15th April, 2015 ordered impleadment of 20 builders who were selected by DG as a representative sample for the purpose of investigation in the matter, i.e. the respondents 5 to 25 herein and after considering the replies, objections and submissions of the respondents and the rejoinder of the petitioner informant thereto, has found observed held:-- That the petitioner informant, prior to the information (Case Number 59/2011) on which investigation by DG was ordered also, had filed information being Case Number 07 to 2011 against the respondents Number 2 to 4 namely Tulip, Director, Town Country Planning, Chandigarh and HUDA on similar facts, alleging abuse of dominant position.

CCI had vide order dated 29th April, 2011 closed that case observing that there was no prima facie indication of dominance by the respondent Number 2 Tulip in the relevant market and that there was no allegation of any agreement between the respondent Number 2 Tulip and other enterprises engaged in similar or identical business and therefore none of the clauses of Section 3(1) read with Sections 3(3) or 3(4) of the Competition Act was found to be applicable.

The subject information (Case Number 59/2011) however alleged anti- competitive agreements arrangements understanding amongst various real estate enterprises including respondent Number 2 Tulip and tacit understanding amongst all the real estate players in the market according to the petitioner informant the Code of Conduct adopted by the respondent Number 5 CREDAI also indicated collusion amongst its members.

That as far as the alleged anti-competitive conduct arising out of the agreement between the petitioner informant and the respondent Number 2 Tulip was concerned, the same did not fall within the discipline of Section 3(3) read with Section 3(1) of the Competition Act as the petitioner informant and the respondent Number 2 Tulip are not operating at the same level the agreement also does not come within the purview of Section 3(4) as an end- consumer is not part of any production chain in the market as envisaged thereunder.

Similarly with respect to the alleged conduct of the respondent No. 2 Tulip in terms of the provisions of Section 4 of the Act, CCI in the previous case filed by the petitioner informant had ruled out applicability of Section 4 as dominance of the respondent Number 2 Tulip was not established the petitioner informant had neither filed any fresh material to establish contra nor did the DG come across any material which could be reflective of any change in the market dynamics.

That there was no specific allegations of anti-competitive conduct in terms of provisions of Sections 3 and 4 of the Competition Act against the respondents Number 3 4 namely Director, Town Country Planning, Chandigarh and HUDA and the prayer of the petitioner informant seeking examination of their functioning did not merit consideration.

That the common practices carried on by the builders developers found by the DG to be emanating out of a tacit agreement were as follows:-- Non-disclosure of calculation of total common area and its proportionate apportionment on the apartments being sold on Super Area basis and, reserving the right to increase or decrease the flat area.

Non expressly disclosing the applicable laws, rules and regulation etc.

with respect to the projects being developed.

Reserving the right of further construction on any portion of the project land or terrace or building and to take advantage of any increase in FAR FSI being available in the future.

Charging high interest from the apartment owners on delayed payments as against payment of significantly lower interest inadequate compensation on account of delay on the part of the builder in implementation of the project.

Restricting the rights, title and interests of apartment allottees to the apartments being sold, and retaining the right to allot, sale or transfer any interests in the common areas and facilities as per their discretion.

Fastening the liability for defaults, violations or breaches of any laws, bye laws, rules and regulations upon the apartment owners without admitting corresponding liability on the part of builder developer.

Non-disclosure of all the terms and conditions of sale to the prospective buyers at the stage of booking of apartments and taking booking amount from interested buyers without disclosing the terms and conditions of the Sale Agreement to be executed at a later stage.

That DG, to arrive at the aforesaid finding conducted a comparative study of the flat buyers agreements executed by such builders with their respective buyers and based on the commonalities aforesaid it was concluded that the same reinforces the presumption of one follows the other phenomenon the DG further observed that though the various clauses of the agreements conveying same or similar intent were differently worded, the same could not be reached through independent actions of the various builders and thus concluded that contravention of the provisions of Sections 3(3)(a) and 3(3)(b) of the Act was made out.

That for establishing contravention of Section 3(3) read with Section 3(1) of the Act, some evidence of practice carried on or decision taken by the CREDAI which further results into price fixing, limiting and controlling provision of services etc.

has to be shown in the present case the DG did not find any evidence which is suggestive or indicative of any role played by CREDAI in providing its platform to the members for anticompetitive practices.

In such a scenario, it was incumbent upon the DG to have gathered sufficient evidence in the light of the thresholds laid down in the Act.

The DG, de hors the platform of CREDAI for conducting the impugned practices, did not find any material other than the agreements executed between the builders and the buyers containing the common clauses to a varying degree.

Such commonality, in the absence of any evidence to establish role of CREDAI or understanding, arrangement or action in concert between the individual enterprises which are arrayed as opposite parties, cannot be held to be in contravention of the provisions of Section 3(3) read with Section 3(1) of the Act.

CCI itself after looking into the matter in great depth found no evidence to corroborate that CREDAI has provided any platform, directly or indirectly to its members for indulging in any anti-competitive practices.

CREDAI had over 9000 members there were other players in the real estate development market who were not associated with CREDAI.

Since DG had not produced sufficient material on record wherefrom any concert amongst the players can be gleaned, it would be futile to examine the common practices to ascertain the contravention of the relevant provisions of the law.

Though CREDAI does provide platform to real estate enterprises to meet and discuss issues of common interest and find common solutions to their problems to further the commercial interest of its members who are all builders developers but DG did not find any evidence of any role played by CREDAI in providing its platform to the members for anti-competitive practices.

That a perusal of the Code of Conduct including the clauses relating to booking, agreement to sell and forfeiture also did not make out a case of contravention of the provisions of the Act.

Resultantly, CCI differed from the finding of the DG on issue of contravention of provisions of Sections 3(3)(a) and (b) of the Act and held that no sufficient evidence was available on record warranting a finding of contravention.

The senior counsel for the respondent Number 18 on the basis of findings reasons aforesaid of CCI contends that there is no scope of interference therewith under Article 226 of the Constitution of India.

During the hearing, a copy of the order dated 29th April, 2011 of the CCI of dismissal of the earlier information submitted by the petitioner (Case Number 7/2011) is also handed over.

The senior counsel for the respondent Number 18 also draws attention to the prayer paragraph of the petition inter alia seeking restoration of the allotment of a flat in a project Tulip White in Sector-69, Gurgaon of the respondent Number 2 Tulip and contends that the petitioner has been litigating in that respect before foras courts and the present petition is yet another steps in the said direction.

A summary of the common practices found by the DG and the conclusion of the DG thereon is also handed over to show that even DG has found variations from builder to builder and project to project and some of the practices being followed by only a few of the builders.

I tend to agree with the senior counsel for the respondent Number 18 that irrespective of the legal question on which the hearing was commenced, there is no merit in the petition on the merits of its own facts.

I have in fact asked the counsel for the petitioner that when several enterprises are carrying on the same business enterprise, whether not owing to the peculiar features factors of that business enterprise common to all, there is bound to be a commonality in certain respect in the clauses of the contracts which such businesses enterprises enter into with all those with whom they enter into contracts and whether such commonality which is inherent owing to the nature of business enterprise can be called violation of the provisions of the Competition Act.

Instance of vendors of fruits and vegetables is given and it is enquired, whether not all are bound to call their goods fresh irrespective of whether in fact they are fresh or stale and whether by their said conduct they can be said to be in violation of the Act.

No proper reply to the said query is forthcoming save that the counsel for the petitioner draws attention to the paragraphs of the impugned order of CCI, after the paragraph where the CCI concludes that a finding of contravention of the Competition Act is not warranted.

In the said paragraph, CCI has clarified that its finding should not be taken as ignoring the hardships which the consumers of real estate face at the hands of developers of real estate and comments on the absence of a regulatory mechanism for the said sector and the need for redressal thereof by the policy makers and expresses hope of the Parliament bringing a suitable legislation therefor (and which has now been brought in the form of RERD Act).

I am unable to agree.

Merely because CCI has made such observations, would not dilute the findings of CCI of there being no evidence of any agreement between the developers of real estate or of formation of cartels resulting directly or indirectly in determining the purchase or sale price or any anti-competitive practice.

The counsel for the petitioner, from the report of DG has not been able to show any evidence which the CCI in the impugned order has ignored or which can be said to be showing anything contrary to the reasoning adopted by CCI in the impugned order.

The challenge in this petition is thus to the application by CCI of Section 3 of the Act to the facts of the case and the scope of this petition has to be confined to see whether the said application is in accordance with settled principles of law and interpretation of statutes and if it is found to be so, cannot be extended to judge the correctness of the conclusions drawn by CCI, an expert body comprising of members from several fields and which is the domain of an appeal and not exercise of jurisdiction under Article 226.

Section 3(1) to (3) of the Competition Act, relevant for our purpose are as under: Anti-competitive agreements.--(1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.

Any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void.

Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which- (a) directly or indirectly determines purchase or sale prices (b) limits or controls production, supply, markets, technical development, investment or provision of services (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.

Explanation.--For the purposes of this sub-section, bid rigging means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding.

In my analysis, Section 3 Prohibits i) an enterprise ii) an association of enterprises iii) a person and, iv) an association of persons from entering into any agreement as specified in sub-section (1) thereof.

B. declares such an agreement to be void.

C. presumes i) such an agreement or ii) practice carried on or iii) decision taken by such associations engaged in identical or similar trade of goods or provision of services, if it a) determines price or b) limits or controls or c) divides allocates areas or types or customers or d) results in price rigging to have an adverse effect on competition.

An agreement, in law, may be oral or in writing but requires a meeting of minds of the parties entering into agreement on all the essentials of the subject qua which they are entering into agreement so as to bind each other thereto and compel performance or to measure damages in lieu of performance.

Such meeting of the minds, in the absence of a writing, has to be proved as a fact and without it being so proved, there cannot be said to be contravention of Section 3(1).

However, rarely is evidence available, even if applying test of preponderance of probabilities, to establish prove that an agreement which is prohibited by law has taken place.

Agreements prohibited by law are always shrouded in secrecy.

To take care of such an eventuality, Section 2(b) of the Act while defining agreement, takes within its ambit any arrangement or understanding or action in concert, even if arrived at informally and even if not intended to be enforceable.

Thus, an agreement within the meaning of Section 3(1) will be found if the action of parties are found to be in pursuance to some common intention, even if not in pursuance to an agreement within the definition of Contract Act, 1872, but in pursuance to an understanding or arrangement.

Conversely it follows that merely because two or more persons are doing similar or identical thing, will not find an agreement within the meaning of Section 3(1) unless some, if not all the way, meeting of their minds or common intention to do so is established.

Further, Section 3(1) does not prohibit association or agreement per se, as indeed it cannot.

The agreements which are prohibited are those i) in respect of production, supply, distribution, storage, acquisition or control of goods and provision of services and, ii) which causes or is likely to cause an appreciable adverse effect on competition.

Appreciable adverse effect on competition, vide Section 3(3) is presumed from such agreement i) determining price and, broadly, ii) limiting or controlling availability of goods or services.

Though the word or is found to be missing from between categories (a) to (d) of sub-section (3) of Section 3 but in the context thereof, in my opinion has to be necessarily read.

It is thus not as if only when all the clauses (a) to (d) are applicable, has the presumption to be drawn.

However Section 3(3) while providing so, besides to agreement refers also to practice carried on or decision taken.

The word decision again connotes meeting of minds of those engaged in identical or similar trade of goods or provision of services.

The question which arises is, whether the words practice carried on refers to a situation resulting even without meeting of minds.

If that were to be so, then the second question which would arise is, whether a practice carried on by those engaged in same trade even without any meeting of minds to carry on such a practice would be covered.

Section 2(m) defines a practice as including relating to the carrying on of any trade.

However what is peculiar is that Section 3(3) which contains the words practice carried on is only raising a presumption as to what the same words in Section 3(1) mean.

Section 3(3) by itself is neither prohibitory nor a voiding provision as Sections 3(1) and 3(2) respectively are.

Thus, the words practice carried on have to be understood as a practice of trade in pursuance to meeting of minds.

Seen in this light, in the absence of any evidence of meeting of minds between any two or more developers of real estate with an intention of causing an appreciable adverse effect on competition, there could be no violation of Section 3 as was complained informed of by the petitioner informer.

Mere formation of an association i.e. the respondent Number 5 CREDAI, is not violation of Section 3, without it being further established that such an association was to or has resulted in appreciable adverse effect on competition.

DG, which is an investigative agency of CCI and with whose findings recommendations CCI, which has adjudicatory role is not bound, found such violations because of finding certain common practices followed by all the developers of real estate surveyed examined by DG.

CCI has however found such practices to be not a result of any common intention.

CCI has further found such practices to be not having any appreciable adverse effect on competition.

I find no error in such reasoning logic approach of CCI.

The seven common practices found by DG and as have been listed out hereinabove are found by me to be such which are inherent to the business enterprise of real estate and or real estate development.

The transactions in real estate are governed by the Transfer of Property Act, 1882 and the Apartment Acts of different States besides by the other laws which vary from state to state and within the state vary qua different type category of real estate.

The principle of caveat emptor i.e. buyer alone is responsible for checking the quality and suitability and title of the property also applies to real estate transactions.

The development construction of real estate is governed by separate set of state and municipal laws, besides the Master Plan, and norms whereof keep on changing from time to time enabling further construction expansion of construction on the land.

In fact during the hearing I have drawn the attention of the counsel for the petitioner to the decision of HUDA in the recent past of increasing the FAR and which has resulted in the land, of which development was complete, also becoming capable of being built on further and enquired whether not owing to such happenings, there is bound to be a clause in the agreement reserving the right of further development construction.

Merely because all carrying on the same business are following certain practices, cannot label the said practices which are inherent to the nature and needs and contingency of the trade enterprise, a violation of the Act and if it were to be held so, I wonder as to how the various developers of real estate would draft the contracts of sale of real estate without providing for the various eventualities which are common to sale and purchase of real estate.

In fact when individuals not in the business enterprise of real estate also develop their own properties and sell part of the development, they also are known to have same clauses as found by DG, in their agreements.

From my law practice of over 25 years, largely in the field of real estate also, I can say that a large number of developers of real estate, to save legal cost, merely copy paste either the agreements of their earlier real estate projects or the agreements as in vogue in the market.

This is not to say that the Advisors in the field of real estate do not themselves follow the practice of cut and paste and which in my practical experience, is responsible to a large extent for the commonality found by the DG and from which commonality DG presumed contravention of the provisions of the Act.

Moreover, the counsel for the petitioner has been unable to tell how the seven practices determine price or limit or control availability of real estate.

No error is thus found in the impugned order of the CCI.

The petition is dismissed.

In this view of the matter, need to render finding on the maintainability of appeal against the order or on the exclusive jurisdiction of RERA established under the RERD Act over the subject matter of the grievance is not felt.

No costs.

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