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TMI Blog2013 (10) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The informant averred that this office memorandum was in contravention of provision of Section 4 of the Act. In short, it was averred that the Government had position of dominance and the same was being used only in favour of Balmer Lawrie & Co. and M/s. Ashok Travels & Tours Ltd. thereby depriving the other travel agents who were members of the informant/appellant's business. It was pointed out that because of the aforementioned office memorandum the Government officials would be compelled to purchase the tickets only through the aforementioned agencies and thereby there would be creation of monopoly in favour of these two agencies and thus the competition in that behalf would be adversely affected. In short, what was alleged was the abuse of the Government's dominant position which resulted in denial of market access to majority of travel agents at large. It was also alleged that by issuing the impugned order the Government of India had adopted a practice which gave protection to the said two agencies which are joined in this appeal as Respondent Nos. 1 and 2. Various relief's were sought including the relief to quash/eliminate the aforementioned order/office memorandum and mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice Memorandum could not be treated as agreement which resulted in restrain on horizontal lines. It was reiterated that Government of India in the present case was a consumer and was not engaged in an identical or similar trade of goods or services as that of opposite parties. As regards the question of abuse of dominance, the CCI came to the conclusion that the informant had not placed any cogent or credible material to substantiate its averment. It was held that since the Government of India was in a position of consumer it could not be held to be a dominant enterprise in the relevant market and the impugned office memorandum was issued with a view to ensure economy in air travel expenses. CCI came to the conclusion that, therefore, there could be no question of contravention of Section 4 of the Act and ultimately it was deduced that the information did not fall with the mischief of either Section 3 or Section 4 of the Act. In that view, the matter was directed to be closed under the provisions of Section 26(2) of the Act. 5. Initially, while R-1 - Balmer and Lawrie & Co. and R-2 - Ashok Travels & Tours were joined as the contesting respondents, CCI was also joined as a third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able manner in taking out the aforesaid Government memorandum. The learned counsel in his argument also suggested that the Government was expected to provide free and fair opportunities to all the players and adopt a fair and transparent system of procuring tickets and tours for its officials. The learned counsel also justified the stand on the ground that if the private players were allowed in the sector it would be definitely cost effective. The learned counsel also invoked "the doctrine of legitimate expectation" and cited the Government Memorandum No. 19056/8/95-E.IV dated 4.12.1997. By citing some of the figures, learned counsel tried to suggest that Government was a dominant player in the market. From those figures, it was tried to be advocated that the sale of travel tickets and tours based on these figures would establish that the Government was in a dominant position. It was then pointed out that R-1, R-2 and the Government in order to protect business interest of R-1 and R-2, Government had issued Office Memorandum dated 24.3.2006 and therefore the Government had entered into 'anti-competitive agreement'. The learned counsel further urged that this contract was nothing bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only clause No. (viii) which seems to have irked the complainant. The clause runs as under :- "Whenever the officer seeks to utilize the service of travel agents, it should be limited to M/s. Balmer Lawrie & Company and M/s. Ashok Travels and Tours. The above agencies would also ensure that procurement of tickets is made on best available bargain across all airlines." 11. Therefore, it is not that the Government officials who wish to take the air travel have under all the circumstances to approach Respondent Nos. 1 and 2 for securing their tickets. In fact the reading of clauses (i) to (vii) suggests that the Government official can purchase any ticket directly across the window provided the fare for such ticket does not exceed the normal fare of the entitled class for the said officer. Once that position is clear it is obvious that the complainant completely misunderstood the aforementioned Government Order. It is only when the Government official seeks to utilize the services of the travel agents, then he has to approach respondent Nos. 1 and 2. The reason is not far to discern. Respondent Nos. 1 and 2 have financial nexus with the Central Government. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch use is made with the approval of such person, whether such purchase of goods is for resale or for any commercial purpose or for personal use; (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person whether such hiring or availing of services is for any commercial purpose or for personal use;" Because of this peculiar language, the appellant has to say that the consumer must be a person. Even if we agree with that argument, we see nothing which can stop the Government from being a consumer. The CCI is also correct in holding that there is no vertical agreement between the Government of India and Respondent Nos. 1 and 2 we endorse that finding. 15. The learned counsel for the appellant also tried to say, that Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited namely Kuldeep Singh (supra) and New Horizons Ltd. (supra). We have carefully seen these rulings and do not find anything in these rulings in support of the contention raised that the action is in any way contrary to Article 14 of the Constitution. All the rulings are entirely different on facts and cannot be applicable to the present facts. An administrative decision to avail of the services of Respondent Nos. 1 and 2 in the first place is not an agreement with Respondent Nos. 1 and 2 and secondly it is not a trading activity. It is also not distributing state largesse. At any rate, our task in this Tribunal would only be limited to decide as to whether the action on the part of the Government in passing the Government Memorandum is in contravention of any of the provisions of the Act. For the reasons given, we hold that the aforementioned Government Memorandum in no way contravenes any of the provisions under the Act, more particularly, Section 3 and Section 4 thereof. In that we do not find any infirmity in the order of the CCI and confirm the same. The appeal is dismissed. However, under the circumstances, we pass no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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