This presentation attempts to compile all landmark judgments which have led to the evolution of modern jurisprudence on competition law in India

1. Exercising their Writ: Courts and
Competition Enforcement in India
1st
UCL Conference South Asian Competition Law
Conference
At
UCL, London
06 November 2018
MM Sharma
Head, Competition Law and Policy

2. SCHEME OF PRESENTATION
1. Role in Regulatory Structure of the CCI
2. Role in Enforcement of the Competition Act,2002 (“Act” )
 Procedural issues
 Due process challenges
 Substantive & Interpretational issues
 Sectoral overlaps
 Gun jumping
2

3. Role in Regulatory Structure
 Though enacted in 2002, the Competition Act, 2002 (Act) could not be
enforced due to challenges to the structure of CCI itself before the
Supreme Court of India by an individual – chaired by bureaucrat
instead of a judge- combining adjudicatory and regulatory functions .
(Brahm Dutt v. Union of India, AIR 2005 SC 730)
 Central Government proposed amendments in the Act to separate
regulatory and adjudicatory functions.
 The proposed amendments (Amendment Act, 2007) separated the
regulatory and adjudicatory powers of the erstwhile CCI as follows:
(a)Regulatory powers - to be exercised by the re-constituted CCI;
(b)Adjudicatory powers- to be exercised by an Appellate Authority
constituted in the nature of a judicial body.
3

4. Role in Regulatory Structure
 The Amendment Act, 2007 led to setting up of the Competition
Appellate Tribunal (COMPAT) to hear appeals against CCI orders.
 Consequently, the main enforcement provisions relating to prohibition of
anti-competitive agreements and abuse of dominant position (Section 3
and 4) and regulation of combinations i.e. merger control provisions of
the Act (Section 5 and 6) were brought into force only on 20th
May 2009
and 1st
June, 2011 respectively.
 The implementing regulations under the Act were also published in 2009.
4

5. Role in Enforcement of the Act
 Courts in India, including COMPAT, have played a decisive role
in streamlining the jurisprudence on enforcement of the main
provisions of the Act by CCI- mainly in relation to the manner of
exercise of powers of inquiry into anti-competitive agreements
and/or abuse of dominant position and few “gun jumping” cases
by CCI .
 Due process challenges admitted by COMPAT – quashed many
CCI orders on violation of the principles of natural justice.
 Procedural challenges admitted by Courts but challenges to CCI
jurisdiction on issues of sectoral overlap or forum shopping
discouraged.
 Few judgments on substantive law 5

6. Role in Enforcement of the Act
Supreme Court- Procedural Challenge- Whether parties have right to
be heard before formation of prima facie view by CCI- Whether order
passed by CCI u/s- 26(1) of the Act is appealable ?
Competition Commission of India (CCI) vs. Steel Authority of India
(SAIL) and Ors., (2010) 10 SCC 744 (9.9.2010)
Direction given by the CCI to the Director General (DG) u/s-26(1) of
the Act to investigate an alleged anti-competitive conduct is merely
administrative and inquisitorial in nature;
CCI not expected to give notice to the parties or hear the parties at the
preliminary stage before directing investigation by DG u/s- 26(1) of the
Act;
But the CCI is expected to record at least some reasons while forming
its prima facie opinion i.e. while directing investigation by DG u/s- 26(1)
of the Act.
Prima facie order passed by CCI directing investigation by DG u/s-
26(1) of the Act cannot be challenged in appeal before COMPAT.
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7. Role in Enforcement of the Act
Delhi High Court –Limits DG’s power not to investigate into violation
beyond specific direction by CCI in prima facie order u/s 26(1) of the
Act.
Grasim Industries Ltd. vs. Competition Commission of India - 206
(2014) DLT-42 (17.12.2013)
DG not authorized to carry out investigation into any allegation of violation in
an information which , in the first instance was not considered by the
Commission while forming its opinion with respect to existence of a prima facie
case of contravention of the provisions of the Act.
The Act contains no provision authorizing the DG to investigate any
contravention…. without a direction of the Commission u/s- 26(1). The
formation of a prima facie view is a sine qua non for DG investigation.
DG report is in the nature of recommendations, which do not bind the
Commission.
In this case CCI directed DG to investigate alleged violation of section 3(3) (a),
(b), (c) but DG report recommended abuse of dominant position by Grasim u/s 4
of the Act.
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8. Role in Enforcement of the Act
Delhi High Court –Whether investigation by DG can be stayed pending
examination of challenge to the manner of conduct of dawn raid by DG
before the High Court ?
Competition Commission of India vs. JCB India Ltd. & Ors.- LNIND
2014 DEL 5585- LPA 715/2014 (02.12.2014)
Pending the challenge to the CCI prima facie order (directing
investigation against JCB) before Delhi High Court in which the interim
order allowed the investigation to continue, DG conducted a “dawn raid” ,
the manner of which was challenged again JCB resulting into passing the stay
order dated 26.09.2014 against further investigation by the Single Bench.
In the appeal filed by CCI before the DB to challenge the stay order, JCB
objected to the locus of CCI to file the LPA when the original writ petition
was still pending before the Single Bench.
It was held that CCI did have the locus to prefer the appeal when its
regulatory powers in relation to investigation process are hampered.
The matter is still pending in the Single Bench .
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9. Role in Enforcement of the Act
Madras High Court –Whether DG can investigate parties other than those
originally impleaded order u/s 26(1) of the Act.
Hyundai Motor India Limited and Ors. vs. Competition Commission of
India - (2015) 127 CLA 46 (Mad.): 2015 (3) CTC 290: (2015) 2 MLJ 560
(04.02.2015)
Information was filed against Honda Siel cars, Fiat and Volkswagen for
refusal to make genuine spare parts of their respective brands of cars freely
available in the after market for OEM spare parts. On starting investigation DG
found similar anti-competitive conduct being committed by Hyundai Motors ,
amongst others OEMs. DG placed this additional information before CCI with
a memo requesting for including Hyundai and other OEMs in the investigation.
CCI passed fresh prima facie order dated 22.06.2011 u/s 26(1) against
Hyundai and other OEMs for investigation.
Reliance was placed on the Grasim case decided by Delhi High Court.
But Madras High Court did not find that the DG had exceeded its
jurisdiction since it did not suo moto initiated the investigation but on the
basis of CCI second prima facie order dated 22.06.2011.
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10. Role in Enforcement of the Act
COMPAT–Whether CCI should go into the merits or facts of the case in
detail , while making a prima facie view u/s 26(1) of the Act ?
North East Petroleum Dealers Association v CCI & Ors.,-Appeal No.
51/2014 ( 26.11.2015)
Gujarat Industries Power Co. Ltd. vs. CCI & GAIL -Appeal No. 3/2016
(28.11.2016)
 While examining the information u/s 26(1) of the Act to determine
whether a prima facie case exists to merit DG investigation or not, CCI can
not delve deep into the merits of the allegation, rely upon undisclosed
material and record a finding.
CCI is required to form a prima facie opinion on the basis of averments
or contents in the information and can not make a detailed examination of
the allegations in the information or evaluate/analyze the evidence
produced with the information, particularly, after holding a preliminary
conference.
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11. Role in Enforcement of the Act
Delhi High Court –Whether or not parties under investigation before the
DG can be assisted by their counsels including during recording of
statements before the DG?
Oriental Rubber Industries Pvt. Ltd. vs. CCI - WP (C) 11411/2015
(22.04.2016)
CCI vs. Oriental Rubber Industries Pvt. Ltd. – LPA No. 607/2016
(24.05.2018)
Held that right to practice is not only a statutory right under the Advocates Act,
1961 but also a fundamental right of advocates.
Section 30 of the Advocates Act, 1961 confers an advocate right to practice
before any person legally authorized to take evidence and since DG is so
authorized under the Act, advocate has right to practice before DG which would
include accompanying a person who has been summoned by the DG for
investigation.
In the LPA filed by CCI, the DB however directed the DG to ensure that ‘the
counsel does not sit in front of the witness but is some distance away and the
witness should be not able to confer or consult her or him
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12. Role in Enforcement of the Act
Delhi High Court – (1) Whether DG can investigate without specific prima facie
order against a party u/s 26(1) of the Act (2) Whether prima facie order can be
recalled/ reviewed after DG investigation report (3) Whether CCI can hold
simultaneous inquiry under section 48 of the Act against the Managing Director
and other officials of the company without first arriving at a finding of violation
of anti-competitive conduct against the company ?
Cadila HealthCare Ltd. & Anr. vs. CCI & Ors.- W.P.(C) 2106/2018 (09.03.2018)
Cadila HealthCare Ltd. & Anr. vs. CCI & Ors.- LPA 160/2018 & CM APPL. Nos.
11741-44/2018 (12.09.2018)
(1) Relied upon SC judgement in Excel Crop and differed from Grasim Case –
held that DG can investigate without any specific finding of a prima facie case
against a party, if its named in the information.
(2) Distinguished from the facts in the Google Case- Prima facie order cannot be
recalled or reviewed after completion of investigation.
(3) Simultaneous inquiry against the Managing Director and other officials of
Cadila can be held without first finding Cadila guilty of the anti-competitive
conduct.
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13. Role in Enforcement of the Act
Delhi High Court -Existence of an arbitration agreement would not oust
the jurisdiction of CCI.
Union of India Vs Competition Commission of India (2012) AIR 66
(DelHC)(23.02.2012)
Delhi High Court-Proceedings before CCI under the Act are not barred
due to previous decisions of Uttarakhand High Court under principles of
res judicata provided the scope of the petitions filed before the Uttarakhand
High Court and the matter brought before CCI are materially different.
Uttarakhand Agricultural Produce Marketing Board and Ors Vs
Competition Commission of India-W.P (c) 10411/2016/ (22.09.2017)
13

14. Role in Enforcement of the Act
Delhi High Court – Whether Writ Petition can be filed if no appeal lies
u/s 53A of the Act?-
Jyoti Swaroop Arora vs CCI and Ors. -W.P.(C) No.6262/2015 (16.05.2016)
Held that if on the facts of the case there was no scope for intervention by
the High Court and Writ jurisdiction can not be exercised to examine the
correctness of the conclusions drawn by CCI, an expert body.
COMPAT also refused to entertain appeals against orders of closure of
cases passed by CCI where DG had found violation- grey area u/s 26(8)
of the Act.
Jindal Steel & Power Ltd. vs CCI & Ors.- Appeal No. 45/2012
(03.04.2013)
M/s. Arshiya Rail Infrastructure Ltd vs CCI and Ors. -Appeal
No.136/2012 (04.04.2013)
14

15. Role in Enforcement of the Act
COMPAT- Due process challenges- When CCI disagrees with the findings of no
violation recorded by the DG, then it shall indicate the reasons for such
disagreement and issue notice to the parties incorporating the reasons of
disagreement and give them opportunity to file their replies/ objections, and after
receiving replies of the parties , it shall hear them before passing order of violation
u/s 27 of the Act.
Interglobe Aviation Ltd. (IndiGo Airlines) and Ors. Vs. The Secretary,
Competition Commission of India & Ors., Appeal No. 07,8 and Appeal No. 07,8
and 11/2016 ( 18.04.2016) ( Fuel surcharge case) filed by Express Industry
Council of India against major airlines.
COMPAT- Due process challenges- After oral hearing was completed, final order
signed by 2 new members who did not hear- Order quashed on grounds of
violation of principles of natural justice.
All India Organization of Chemists and Druggists v. Competition Commission of
India, Appeal No. 56/2014 (24.04.2015)
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16. Role in Enforcement of the Act
COMPAT- Due process challenges- During oral hearing, though Chairman was
not present yet he signed the Final Order- held the ability of the Chairman to
influence other members cannot be ruled out -Order quashed on grounds of
violation of principles of natural justice.
Ambuja Cements Ltd. & Ors. vs CCI & Ors. Appeal No. 125-129/2012
(11.12.2015)
Delhi High Court –Due process challenges- Cross examination of witnesses
-other parties need not be heard by CCI before allowing application for cross
examination during further investigation by DG u/s 26(7) of the Act.
South Asia LPG Co. Pvt Ltd. vs. CCI – LPA 857/2013-(03.09.2014) 2014C
ompLR285(Delhi), 2014(145)DRJ368
16

17. Role in Enforcement of the Act
COMPAT- Due process challenges- CCI’s disagreement with relevant market
determined by DG not informed to the Opposite party before passing final order of
violation- quashed on violation of principles of natural justice
Board of Control for Cricket in India v. Competition Commission of India,-
Appeal No. 17/2013 (23.02.2015)
COMPAT- Incorrect determination of relevant geographic market by CCI – led to
closing of the case of abuse of dominance against Uber- Order quashed and DG
directed to investigate the matter- Whether COMPAT has powers to direct
investigation by the DG while quashing CCI Order of closure of case u/s 26(2)
of the Act? – ambiguity in language of Section 53B(3)- Order challenged by
Uber in Supreme Court.
Meru Travels solution Pvt. Ltd vs CCI and Uber India and Ors.-Appeal No.
31/2016 (07.12.2016)
COMPAT-Locus standi for filing appeal against CCI orders-only persons
aggrieved by the order of the CCI can challenge the CCI’s orders in the appellate
forum.
Jitendra Bhargava v. CCI and Ors.,- Appeal No. 44/2013
(27.03.2014) 17

18. Role in Enforcement of the Act
Delhi High Court –Interpretational Challenge- Whether Ministry of
Railways is an “Enterprise” u/s 2(h) of the Act ?
Union of India vs. Competition Commission of India (2012) AIR 66
(DelHC) (20.03.2012)
It was urged that operating the Indian Railways was a “sovereign”
function and hence excluded from the purview of the Act under the
definition of “Enterprise” u/s 2(h) of the Act.
Held that there is a "commercial angle" to the services rendered by the
Indian Railways and it is not an inalienable function of the State, which is
capable of being performed by private enterprises, like in other developed
Countries.
Court also noted that Central Government had also rejected the request of
the Indian Railways seeking exemption from the ambit of Competition Act
u/s 54 of the Act .
18

19. Role in Enforcement of the Act
Delhi High Court- Substantive law - Whether CCI has right to
review/recall its prima facie order u/s 26(1) of the Act?
Google Inc. & Ors. vs. Competition Commission of India & Ors. [2015]
127 CLA 367 (Delhi) ; 2015 CompLR 391 (Delhi) (27.04.2015)
Held that CCI has an inherent power to recall its own order finding a
prima facie case under section 26(1) of the Act in certain limited
circumstances, e.g. where the order was passed by the Commission on
account of fraud, misrepresentation or suppression of material facts by
the informant or where the allegations are absurd or inherently improbable
or where there is an express legal bar to the institutions and continuance of
the investigation or where the information / reference / complaint is filed
with mala fide or ulterior motives or the like.
CCI objection that its power to review its orders u/s 37 of the Act were
specifically deleted in the Competition (Amendment
) Act, 2007 rejected.
19

20. Role in Enforcement of the Act
Supreme Court – Substantive law laid on extent of penalty – Whether on the
“total” turnover or on the “relevant” turnover. Also clarified procedural issue -
Whether DG can investigate into all allegations made in the information in the
absence of specific direction of CCI to investigate each of them u/s 26(1) of the
Act directing investigation by DG?
Excel Crop Care Ltd. vs. CCI & Anr. (2017) 8 SCC 47 (08.05.2017)
Collusive bidding and bid rigging mean the same thing.
Anti-competitive agreement entered prior to 20.05.2009 but continued after the
said date can be examined by CCI – applied the rule of retroactivity to antitrust
proceeding.
In a multi product company, penalty can not be disproportionate and imposed on
the “total” turnover and has to be restricted to the turnover derived from the sale of
the product in respect of which anti-competitive conduct was found i.e. on the
“relevant” turnover; applied doctrine of proportionality and “purposive
interpretation”.
DG can investigate parties other than those mentioned in prima facie CCI order
or even in the information. Information is only the starting point of inquiry. Even
the prima facie opinion by CCI can’t foresee and predict completely. 20

21. Role in Enforcement of the Act
Supreme Court of India- Substantive law/ Interpretations
Rejected COMPAT’s finding that denial of market access u/s 4(2)(c) can
only be by one competitor against another and that as a broadcaster cannot
be said to compete with MSOs, there would be no violation of either
Section 3 or Section 4 of the Act. Further, also rejected the finding that
there cannot be an abuse of dominance of denial of market access against a
consumer u/s 4(2)(c) of the Act.
Competition Commission of India Vs Fastway Transmission Pvt. Ltd and
Ors. Civil Appeal No. 7215/2014 ( 24.01.2018)
Determination of a ‘relevant market’ is not a mandatory pre-condition for
undertaking an assessment of an alleged violation of Section 3 of the Act.
Competition Commission of India vs Co-ordination committee of artists
and Ors. Civil Appeal No. 6691/2014 (07.05.2018)
21

22. Role in Enforcement of the Act
Supreme Court of India- Landmark judgment on cartels/ bid rigging
In the absence of sufficient evidence to establish collusion amongst
bidders, it cannot be presumed under the standard of proof of
“preponderance of probability”.
It is necessary to demonstrate by evidence that such “agreement” even
when presumed resulted into foreclosure of entry of new players i.e. it
resulted in an appreciable adverse effect on competition in the relevant
market.
In brief, in a oligopsonistic market where buyers ultimately decide the
lowest price at which suppliers will supply, an “agreement” for collusive
bid rigging cannot be presumed merely by quotation of parallel or identical
prices by the bidders under the preponderance of probability standard
provided there are no direct or indirect evidence of such collusion.
Rajasthan Cylinder and Containers Ltd & Ors vs Union of India & Anr.
-Civil Appeal No. 3546/2014 and 43 others ( 01.10.2018)
22

23. Role in Enforcement of the Act
Delhi High Court- Jurisdictional Challenge –Sectoral overlap- Whether
CCI has jurisdiction to examine allegations of anti-competitive conduct
and abuse of dominance even if the Patents Act provides for efficacious
remedies in the nature of grant of compulsory licenses?
Telefonaktiabolaget LM Ericsson (PUBL) vs. CCI & Anr. – W.P. (C)
464/2014 (30.03.2016)
Ericsson challenged jurisdiction of CCI, on grounds that since an
efficacious remedy in the nature of compulsory license exists under the
Patents Act, the Competition Act will not apply and CCI has no jurisdiction
to decide the rate of royalty and other terms for grant of license for its SEP
to two Indian mobile manufacturers.
Held that the jurisdiction of the CCI under the Act to probe allegations of
anti-competitive practices and abuse of dominance arising out of the
monopoly granted by patent rights cannot be taken away even if the Patents
Act provides for efficacious remedies inter alia in the nature of grant of
compulsory license.
23

24. Role in Enforcement of the Act
Delhi High Court-Jurisdictional challenge-Sectoral overlap – In case of
conflict between the Act and the Copyright Act,1957, the jurisdiction issue
will be decided by CCI. CCI decided that it has jurisdiction to examine
allegations of abuse of dominant position in charging royalties for music
licensed to one FM Radio station since there is no provision for such
violation in Copyright Act. Moreover, there is no exemption to prevent
exercise of monopoly power under the Copyright Act u/s 4 of the Act unlike
section 3(5) of the Act.
Super Cassettes Industries Ltd. vs UOI & Ors. W.P(c) 1119/2012
(04.10.2012)
COMPAT-sectoral overlap -In case of a conflict between the Act and the
Electricity Act,2003 , even though Section 60 of Act contains a non obstante
clause, the Electricity Act would prevail as it is a ‘later special statute’.
Moreover, Electricity Act has its own system to check on Abuse of
dominance and specifically mentions the Act.
Anand Prakash Agarwal Vs Dakshin Haryana Bijli Vitran Nigam and
Ors-Appeal No. 33 of 2016 (16.02.2017)
24

25. Role in Enforcement of the Act
Supreme Court of India – “Gun jumping”-
Market purchase of 9.93% shares from open market constitutes “inter-
dependent” or “composite transactions” under Regulation 9(4) and therefore
needs to be notified, even if the market purchase target was in the ambit of
de minims exemption..
Not notifying the above constituted “substantial” gun jumping and penalty
under Section 43A leviable.
There is no requirement of mens rea u/s 43A of the Act or intentional
breach as an essential element for levy of penalty.
Competition Commission of India Vs Thomas Cook (India) Ltd. & Ors.
-Civil Appeal No. 13578 of 2015/ (17.04.2018)
25

26. Role in Enforcement of the Act
Supreme Court of India – “Gun jumping”-
First purchase of 24.46% of equity shares on a single day were strategic
and cannot be considered as having been made as investment in the ordinary
course of business – Hence benefit of exemption under Item 1 of Schedule 1
of the Combination Regulations not available. Constitutes substantial gun-
jumping u/s 43A of the Act.
Second purchase of 1.7% of equity shares and keeping them in escrow
account until receipt of the CCI approval did not absolve the party from the
violation of procedural gun-jumping u/s 43A of the Act.
Sections 31 and 43A of the Act operate in two different fields. Grant of
approval for the transaction by CCI u/s 31 of the Act does not absolve the
parties from violation of gun-jumping.
There is no requirement of mens rea u/s 43A of the Act or intentional
breach as an essential element for levy of penalty.
SCM Solifert Limited & Ors. Vs Competition Commission of India Civil
Appeal No. 10678/2016 (17.04.2018) 26

27. Disclaimer
This presentation is intended to provide general information in
a summary form. It does not constitute legal advice and should
not be relied upon as such. Formal legal advice should be
sought in particular matters
27

28. 28Disclaimer: While every care has been taken to ensure accuracy of this presentation, Vaish Associates shall not assume
any liability/ responsibility for any errors that might creep in. The material herein does not constitute/ substitute
professional advice that may be required before acting on any matter.
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29. Thank You
Contact:
MM Sharma , Advocate ,
Head-Competition Law & Policy
Vaish Associates, Advocates
Ex-Addl. Registrar, CCI
E- mmsharma@vaishlaw.com
Mobile- +91-9958821720