TMI Blog2013 (10) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... on, it cannot come within the mischief of any of the sub-section of Section 3 of the Act. In fact no particular ticketing agency could claim any right in the matter of dealing with the Government. The Government like any other consumer has a right to deal with the agency that it likes. 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. - decided against the appellants. - 21 OF 2010 - - - Dated:- 26-9-2012 - V.S. SIRPURKARAND AND MRS. PRAVIN TRIPATHI, JJ. For the Appellant : B.S. Chauhan. For the Respondent : A.N. Haksar, R. Sudhinder, Vikash Verma and Ajay Verma. ORDER:- PER : Justice V.S. Sirpurkar Being aggrieved by the order passed by the Competition Commission of India (in short the "CCI") under Section 26(2) of the Competition Commission Act, 2002, (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to ensure the economy in air travel expenses of Government officials. CCI held that the main objective of the Office Memorandum was to rationalize the expenditure by taking advantage of competition amongst the airlines. It was observed that the Government official was free to procure air ticket directly from any airlines or through internet for official domestic visits and it is only when an official wants to utilize the services of travel agents that he had to go only to respondents, who were required to ensure that the procurement of the ticket should be on the best bargain basis across all airlines. CCI therefore deduced that the case made by the informant that the officials had not alternative but to purchase only through the agency of R-1 was factually incorrect as it was clear that they were free to purchase tickets directly from any airlines across the window as the case may be. It was only when they sought to utilize the services of travel agents then they had to purchase from R-1 and R-2 only. The CCI then hold that the Government of India was in a position of a consumer for air ticketing services and as such was free to make a choice of the ticketing agency and in thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her it is a consumer in the sense as noted in paragraphs 9.4 and 9.5 of the impugned order. The record shows that such affidavit has been filed by R-4 taking unequivocal position that it is a consumer and had every right to have its choice as to whom it shall deal with. In short, the Government of India has justified its position as a consumer and while supporting the order of the Commission has opposed the appeal. 7. We have heard the parties including the Government of India who have addressed on the various aspects of the matter. 8. The learned counsel for the appellant submits that firstly the Government of India could not have held to be a consumer. The learned counsel asserted that Government was sovereign and India was a welfare state. While supporting his arguments, the learned counsel took us to the definition of 'consumer' vide Section 2(f) of the Act and firstly contended that Government was not a person who can buy any goods or services for consideration. Our attention was also invited to the definition of "person" vide Section 2(l) and it was pointed out that under ten categories mentioned in the section, Government cannot be included. It was, therefore, contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and pointed out that the term consumer could not be read in the narrow manner and in fact the definition of the word 'person' was not an exhaustive definition but an inclusive definition. Our attention was also invited towards the definition of the term "enterprise" in Section 2(h) which included a person or the Department of the Government who or which is, or has been, engaged in the activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods or the provision of services of any kind. It was pointed out that, therefore, the term 'person' could not be narrowly interpreted so as to exclude the Government. The learned counsel argued that the Tribunal was absolutely right in viewing the Government as a 'consumer' because admittedly the Government in the present case was hiring or availing of services for a consideration and the Government could always have been viewed as a person. It was pointed out further that the true meaning of the Government Memorandum was completely misunderstood by the appellant. 10. We have perused the order passed by the CCI which is impugned herein. It is obvious from that order that the CCI has considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that view, we do not find anything wrong with the questioned Government Memorandum. 12. As regards the finding that the Government is a consumer of air ticketing services, we are of the opinion that the approach of the CCI is correct. There is no reason why the Government cannot be termed as a consumer in these circumstances of the present matter, more particularly, when it is seeking the services for securing air tickets on the reasonable rates. 13. The argument that because the Government is not a "person", therefore, it cannot be a consumer is obviously incorrect as has been rightly pointed out by the respondents. The definition of "person" is an inclusive definition and the term cannot be unnaturally restricted. There cannot be a narrow interpretation of the term "person". Once that view is taken the Government can be treated to be a person and also the consumer. If we have a glance at the definition of the "person", it suggests that a local authority or an artificial juridical person also can be included in the term "person". If that is so, there is no reason why the Government should be excluded from being a person. 14. The whole basis of the arguments by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4 of the Act. 16. Insofar as the contention that the Government Memorandum was in the nature of anti-competitive agreement, the finding of the CCI is correct that the said Government Memorandum does not amount to an agreement. It is an internal administrative decision to deal with a particular agency in the matter of securing air tickets. In our opinion, it cannot come within the mischief of any of the sub-section of Section 3 of the Act. 17. We must, at this stage, consider the argument regarding "the doctrine of legitimate expectation". In our opinion, the appellant has not made out any case whatsoever for invoking that doctrine. Merely because the Government is a purchaser of air tickets and every ticketing agency cannot have any expectation much less legitimate expectation that the Government would deal with it. We have seen the ruling cited particularly the one reported in Union of India v. International Trading Co.[2003] 5 SCC 437. It is held therein that the applicability of the doctrine is a question of fact and that for invoking the doctrine of legitimate expectation, there has to be a foundation. No such foundation has been made in this case by the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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