TMI Blog2010 (10) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Kumar, Ms. Ponnam Verma and Ms. Manpreet Kaur for the Petitioner. Ms. Maneesha Dhir and Ms. Preeti Dalal for the Respondent. ORDER 1. Both writ petitions challenge an order dated 16-6-2010 passed by the Competition Commission of India ( CCI ) under section 26(1) of the Competition Act, 2002 ( CA ). 2. The background to the present petitions is that by an order dated 13-2-2009, 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and visual media that airline operators, including the petitioners herein, had collectively increased air fares and withdrawn the promotional fares as a result of which additional costs were imposed on the consumer and competition in the industry was reduced.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 ( MR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requesting for copies of the information/documents as also the order passed by the CCI on the basis of which investigations were initiated. On 30-8-2010, the petitioner IAL inspected the file of RTPE No. 5 of 2009 and requested the Secretary, CCI to provide copies of the inspected information/documents. This was provided on 6-9-2010 by the DG(I R) stating that a reply must be filed by 10-9-2010, Further time was granted by the CCI to the petitioners on 13-9-2010 to file a reply failing which the petitioners would face penal action under section 43, read with section 45 of the CA. On 15-9-2010, the IAL obtained a copy of the impugned order dated 16-6-2010 of the CCI. A further seven days time to file a reply was given by the CCI on 22-9-2010. On 1-10-2010, the present petitions were filed in this Court. 6. 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. 7. The first submission is that the CCI had no jurisdiction whatsoever to deal with RTPE No. 5 of 2009 because this was a matter pending before the erstwhile MRTP Commission. It is submitted that under section 66(3) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 of the CA "66. 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, obligatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (5) All cases pertaining to unfair trade practices referred to in clause ( x ) of sub-section (1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (9) 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. (10) 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." 9. The order dated 30-8-2009 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(I R) 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 16-6-2010, the CCI has erroneously observed that the DG(I R) MRTP Commission undertook the investigation under section 11(2) of the MRTP Act. Nothing much however turns on this. 10. Once the MRTP Commission directed the DG(I R) to undertake investigations, the matter could no longer be said to be pending before the MRTP Commission. The investigation undertaken by the DG(I R) was obviously incomplete and there was no occasion f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) CA shows the contrast between the kinds of matters before the MRTP Commission and the DG(I R). While section 66(3) of the CA talks of cases pending before the MRTP Commission, section 66(6) of the CA talks of all investigations or proceedings pending before the DG(I R). The expression "all investigations or proceedings" is meant to encompass even investigations and proceedings before the DG(I R) which remained incomplete as of the date of the CAA 1999. 15. It was sought to be urged by Mr. Kaul that section 66(6) of the CA was meant to cover only such cases where the DG(I R) 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) of the CA to suggest this. The resultant position is that all investigations and proceedings which were pending before the DG(I R), 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(I R) 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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