TMI Blog2021 (11) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(h) enterprise of the Competition Act, 2002 have to be Economic and commercial in character. Also that the words employed in preceding the words any activity reflect not only regularity and continuing of activities made mention of in the Section. It is crystalline clear that the Second Respondent/ Bar Council of India / Statutory Body has its primordial role to perform its duties and hence, this Tribunal without any haziness holds that the Second Respondent/ Bar Council of India is not an enterprise having any economic and commercial activity. The First Respondent/ Competition Commission of India are not of any economic and commercial/business activity and further that keeping in mind yet another fact that the Second Respondent/ Bar Council of India / Statutory Body, which is to perform its role as a Regulatory one, cannot be said by any stretch of imagination that the ingredients of Section 4 of the Competition Act, 2002 abuse of dominant position are attracted in the present case, with a view to consider the same, as opined by this Tribunal - the view taken by the First Respondent/ Competition Commission of India in the impugned order dated 20.01.2021 in Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition enjoyed by the BCI in controlling the legal education in India. 6. Based on the above, the Informant has prayed before the Commission to declare the impugned Clause 28 as illegal and void ab initio and impose maximum penalty on the BCI for the violation of Section 4 of the Act and indulging in colourable exercise of power. 10. The Commission notes that the Informant has alleged contravention of the provisions of Section 4 of the Act, primarily, against the BCI. However, in order to appreciate the facts in the matter, it is imperative to examine the status of the BCI as an enterprise within the contours of the provisions of Section 2(h) of the Act before proceeding further with regard to the allegations raised in the information. 11. Thus, the primary question which falls for consideration is that whether BIC is an enterprise within the meaning of Section 2(h) of the Act. The term enterprise has been defined under Section 2(h) of the Act, inter alia, as a person or a department of the Government, engaged in any activity relating to provisions of any kind of services. 12. In the present matter, the Commission notes that the BCI is a statutory body estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal, the Learned Counsel for the Appellant/ Informant submits that the Appellant who took voluntary retirement after putting 29 years of service in the Government of India, to pursue his dream course of LLB in the legal education had appeared for the three year LLB entrance exam of APLAWCET in Andhra Pradesh on 01.10.2020 and scored the state first rank in that examination. 4. According to the Learned Counsel for the Appellant, the Appellant had also applied to his employer Department, i.e. CPWD during November 2020 for Voluntary Retirement to pursue LLB and that the Appellant came to know that Clause 28 of Schedule 3 of Part IV-Rules of Legal Education, 2018 (hereinafter Clause 28), in and by which, the general candidates, who had crossed 30 years of age were barred to pursue legal education. 5. The Learned Counsel for the Appellant contends that it is the primary duty of the First Respondent/ Competition Commission of India, statutory Body created under Section 18 of the Competition Act, 2002 to eliminate practices having adverse effect on competition, promote and sustain competition, protect the Consumers interests and ensure freedom of trade carried on by other par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VRS to pursue legal education. Then I appeared for the three-year L.L.B. entrance examination in Andhra Pradesh(APLAWCET) on 01.10.2020 and scored the state first rank. Then, I have also applied to the department for voluntary retirement to pursue LLB. Later, I came know about the Clause No. 28 of the Rules of Legal Education, 2008 of the bar council of India according to which, the general candidates who have crossed 30 years of age are barred to pursue legal education. 9. Jurisdiction of CCI (applicant(s) should satisfy before filing application whether the issue taken up is covered under the provisions of the Competition Act, 2002). This act of the Bar Council of India (misusing its dominant position) imposing maximum age restrictions to enter into the legal education and hence into the legal service is creating indirect entry barrier to the new entrants into the profession of legal service. This Clause No. 28 is in contravention to the section 4 of the Competition Act, 2002. 10 Details of alleged contravention of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules of Legal Education, 2008 of the Bar Council of India. (i)What irreparable loss is caused / likely to be caused to the informant; and If these rules are in force without any restraint, the applicant Thupli Raveendra Babu (aged 52 years) the state first rank holder in Andhra Pradesh for the three-year LLB entrance(APLAWCET) will be deprived of this lawful right and childhood dream of pursuing legal education in India. In addition to that it will also deprive thousands of other aspirants their dream of pursuing legal education in India. Hence, it is prayed to suspend immediately the Clause No. 28 of the Rules of Legal Education 2008 of the Bar Council of India. (ii) How balance of convenience lies in this favour.The balance of convenience explicitly lies in favour of the applicant. It is established prima facie that the Bar Council of India has blatantly violated the section 4 of the Competition Act, 2002. In case of denial of interim injunction, irreparable non-compensable loss would be caused to the applicant as well as to thousands of other legally eligible a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act and will be amenable to the jurisdiction of the Commission. (iii) In the matter of Rajat Verma vs. Haryana Public Works (B R) Department and Others (vide Appeal No.45 of 2015 vide order dated 16.02.2016, the Competition Appellate Tribunal at paragraph 14 and 23 had observed as under: 14. As is evident from the preamble, the main object of the new legislation was to provide for the establishment of a Commission, which could prevent practices having adverse effect on competition, promote and sustain competition in markets, protect the interests of consumers and ensure freedom of trade carried on by other participants in the markets in India. The provisions of the Act show that the main function of the Commission to curb anti-competitive activities and abuse of dominant position in the markets and also to regulate merger/ amalgamation of enterprises. This is the reason why the legislation does not make any distinction between the public sector or private sector or government departments when it comes to their interface with the market. 23. ...we hold that the Public Works Department, Government of Haryana falls within the definition of the term enterprise under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the CA Act empowers OP to approve academic courses, conduct examination of candidates for enrolment, prescribe qualifications, prescription on levy of fees, 5. The first question which falls for consideration before the Commission is that whether OP is an enterprise within the meaning of Section 2(h) of the Act, and if it is so, whether it is rendering service of any description in terms of Section 2(u) of the Act. The term enterprise has been defined in Section 2(h) of the Act inter alia as a person or a department of the Government, engaged in any activity relating to provision of services, of any kind. In the present case, it can be seen that though OP exercises a regulatory function under the CA Act, it also carries out other commercial/economic activities like conducting professional courses including the CPE programs and publication of books relating to profession of CAs apart from conducting the examinations for CAs. These economic activities of OP can be differentiated from the regulatory activity of regulating the CA profession in terms of prescribing educational qualification, maintenance of status and standard of professional qualifications of members of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a recent decision, Delhi High Court held All India Chess Federation (which performs similar functions as BCCI for the game of Chess) to be an enterprise for the purpose of the Act. (Source: Hemant Sharma Others Vs Union of India, Delhi High Court, WP(C) 5770/2011, date of decision 04/11/2011). 8.30 In line with the provisions of the Act, international jurisprudence, and Delhi High Court decision in case of Chess Federation, it is concluded that BCCI is an enterprise for the purpose of the Act, and therefore, within the jurisdiction of the Commission. (viii) In the matter of Pan India Infraprojects Private Limited vs. Board of Control for Cricket in India (BCCI) (Case No.91 of 2013), the Competition Commission of India on 01.06.2018 had observed the following: 26. The Commission notes that BCCI is the de facto regulator of cricket in India on account of the pyramid structure of sports governance and endorsement from ICC as the national body for cricket in India. (ix) In the matter of Hemant Sharma and others vs. All India Chess Federation (vide case No.79 of 2011, the Competition Commission of India through an order dated 12.07.2018 had observed the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imum possible penalty on the Second Respondent/ Bar Council of India for willful contravention of Section 4 of the Competition Act, 2002. 14. In the instant case, before this Tribunal the seminal point that arises for rumination is whether the Second Respondent/ Bar Council of India comes within the ambit of enterprise as per Section 2(h) of the Competition Act, 2002. 15. In this connection, it is worthwhile for this Tribunal to advert to Section 2(h) of the Competition Act, 2002, which runs as under: 2(h) enterprise means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition of enterprise is very wide and the definition does not only cover those institutions connected with activities pertaining to goods but also covers activities relating to provisions of services of any kind, which gives a very broad connotation to the range of activities that can be covered in the definition of the services . 19. In order that any entity to come within the meaning of enterprise as per Section 2(h) of the Competition Act, 2002 that it is or has been engaged in any activity of the nature defined therein. Moreover, the activities mentioned in the Section 2(h) enterprise of the Competition Act, 2002 have to be Economic and commercial in character. Also that the words employed in preceding the words any activity reflect not only regularity and continuing of activities made mention of in the Section. 20. In view of the above, it is crystalline clear that the Second Respondent/ Bar Council of India / Statutory Body has its primordial role to perform its duties and hence, this Tribunal without any haziness holds that the Second Respondent/ Bar Council of India is not an enterprise having any economic and commercial activity. 21. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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