TMI Blog2023 (4) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... arly indicates that the same ought to be read disjunctively, meaning thereby, that the saving clause of section 15 would equally apply to adjudicatory/judicial powers of the CCI. So read, the intention of the Legislature to ensure that the adjudicatory functions of the CCI does not get impeded for defect arising out of vacancy or constitution arising out of vacancy, becomes clear - any adjudicatory process wherein there is a vacancy or any defect in the constitution of the Commission would not invalidate the proceedings of CCI. It is trite that a statutory interpretation ought to be based on plain reading of the Section itself unless there is any ambiguity which would entail reliance upon extraneous materials. This Court is of the considered opinion that the aims and objects of a particular enactment ought to be interpreted in a manner so as to ensure that the object desired to be fulfilled by the legislature by such promulgation are taken to its logical conclusion. In other words, merely because of a defect or a vacancy in the constitution of the CCI, the CCI cannot be considered as a statutory authority not having jurisdiction to adjudicate the complaints or other proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the learned senior counsel appearing on behalf of the respondents, at all submitted that the members who presently comprise the CCI are disqualified for any reason. Having regard thereto, the question of examining whether the doctrine of necessity is or is not applicable to the present case does not arise at all. There is no impediment, legal or otherwise, in directing the CCI to take up the applications under Section 42 of the Act, as filed by the petitioner, for hearing and considering the same in accordance with law on or before 26.04.2023 - petition disposed off. - W.P.(C) 4599/2023 & CM APPL. 17575/2023 - - - Dated:- 24-4-2023 - HON BLE MR. JUSTICE TUSHAR RAO GEDELA For the Petitioner: Mr. Abir Roy, Mr. T Sundar Ramanathan, Mr. Vivek Pandey, Mr. Aman Shankar Ms. SukanyaViswanathan, Advocates For the Respondents : Mr. N. Venkataraman, ASG with Ms. Aakanksha Kaul and Ms. Versha Singh, Advocates for R-1. Mr. Sajan Poovayya, Sr. Advocate with Mr. Karan Singh Chandhiok, Ms. Avaantika Kakkar, Ms. Deeksha Manchanda, Mr. Kaustav Kundu, Ms. Ruchi Verma, Mr. Tarun Donadi, Ms. Bhavika Chabbra, Ms. Raksha Agarwal, Mr. Vijayendra Pratap Singh, Ms. Sayobani Basu Mr. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief filed by Alliance of Digital India Foundation (Petitioner) against Google on 06.10.2021 (First IRA) in Case No. 07 of 2020 and Case No. 14 of 2021, seeking ad-interim relief restraining Google from implementing its Payments Policy under Section 33 of the Act. 2.4 That thereafter, on 18.10.2021, Petitioner filed an information against Google under Section 19 of the Act (Third Information). The CCI registered the Third Information as Case No. 35 of 2021, which was finally clubbed by with Case Nos. 07 of 2020, 14 of 2021 vide its Order dated 02.11.2021. 2.5 Consequently, from 16.03.2022 till 01.09.2022, the proceedings of these cases moved in full swing by filing of an investigation report by the DG, which was subsequently followed by its response filed by Google, and the detailed hearings conducted thereafter by the CCI. All such proceedings reached its final conclusion by CCI and the matters were reserved for orders. 2.6 After the conclusion of CCI oral hearings and when the final order was reserved, Google swiftly announced a user choice billing (UCB) pilot program for non-gaming app developers in India on 01.09.2022. 2.7 The CCI passed the final order in Case N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I. 6. Mr. Abir Roy, learned counsel appearing for the petitioner submits that upon an information provided by the petitioner and respondent no.6 to the CCI, by virtue of the powers conferred under Section 19 of the Act, it conducted an inquiry and had rendered the judgment, after investigations, vide its Final Order dated 25.10.2022. 7. The directions of the CCI are encapsulated in paragraph 395 of its Final Order dated 25.10.2022. 8. According to Mr. Roy, the respondents nos. 2 to 5 were directed to allow and not restrict app developers from using any third party billing/payment processing services, either for in-app purchases or for purchasing apps, coupled with the fact that the respondents were also directed not to discriminate or otherwise take any adverse measures against such apps using third party billing/payment processing services, in any manner. 9. Learned counsel also submits that apart from prohibitive directions, respondent nos. 2 to 5 were also directed to not impose any condition (including price related condition) on app developers, which would be unfair, unreasonable, discriminatory or disproportionate to the services provided to the app developers. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the appointment of the Chairperson to the CCI is awaited, which has been confirmed by the Mr. N. Venkataraman, learned ASG. ARGUMENTS OF PETITIONER : 16. At the outset, Mr. Roy, learned counsel for the petitioner submits that the interpretation of Section 15 of the Act, insofar as the CCI is concerned, is no more res integra in view of the fact that this Court in Cadd Systems and Services Private Limited vs. Competition Commission of India reported in AIR 2019 Del 194, categorically has, after examining the decision in Mahindra and Mahindra Ltd. vs. Competition Commission of India reported in 2019 SCC OnLine Del 8032 as also the judgment rendered by the Hon ble Supreme Court in B.K. Srinivasan and Others vs. State of Karnataka and Others reported in (1987) 1 SCC 658 and State of Gujarat vs. Utility Users Welfare Association reported in (2018) 6 SCC 21, concluded, after examining the provisions of Section 15 of the Act, that the said provisions amply make it clear that no act or proceedings of CCI would be invalid by reason of any vacancy or defect in its Constitution. 17. Learned counsel submits that as a result of the aforesaid observation, the Coordinate Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be violative of provisions of sub-Section (1) of Section 8 of the Act. Mr. Sethi submits that at present, admittedly, there are only two members and the Chairperson is yet to be appointed. On that basis, Mr. Sethi submits that the Commission is incapable of adjudicating the application under Section 42 filed by the petitioner. 24. Dilating further on sub-section 1 of Section 8 of the Act, Mr. Sethi submits that employment of the word not less than two is couched in negative language and would imply that the composition of the Commission cannot be less than two members and the Chairperson, in all, three members. Learned counsel further submits in a novel argument that vacancy in the Commission could be between upwards of 4 to 7 and anything less than 7 uptil 4 alone would be considered to be a vacancy. This argument is predicated on the provisions of Section 15 of the Act where under sub-section (a), the word vacancy has been employed. In other words, according to Mr. Sethi, learned Senior Counsel, the word vacancy employed in Section 15, would refer to any vacancy in the Constitution of CCI, if such vacancy is on account of vacancy of Members beyond the minimum constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Single Judge of Bombay High Court in Second Appeal Stamp No. 14061 of 2019 titled as Larsen and Toubro Limited vs. Ms. Rekha Sinha, and Janta Land Promoters Private Limited vs. Union of India and Others reported in 2020 SCC OnLine P H 2030, and largely submits that the quorum cannot be a matter of procedure when the same is prescribed by the statute itself. Minimum members of such a quorum cannot, as a matter of procedure, overcome the issue of the inherent lack of jurisdiction as contemplated and prescribed by the statute itself which is thus similar to facts in the present case and thus, even the Section 15 of the Act cannot come to the rescue of the petitioner for directing the CCI to pass orders when there is lack of jurisdiction as provided in the Act itself. 31. While relying upon Lachmi Narain vs. Union of India reported in (1976) 2 SCC 953, Smt. Ujjam Bai vs. State of Uttar Pradesh reported in AIR 1962 SC 1621 and State of Andhra Pradesh and Another vs. Dr. Mohanjit Singh and Another reported in 1988 (Supp) SCC 562, he further emphasizes on the language of Section 22 of the Act and submits that the same is couched in a peremptory, negative and mandatory nature while u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct filed by the petitioner are predicated on an unsound and unfounded allegation on the respondent of not having complied with the directions of CCI vide the Final Order dated 25.10.2022. In fact, according to Mr. Sethi, the petitioners have not even challenged the Final Order dated 25.10.2022 and it is only the respondents nos. 2 to 5 have challenged certain findings of the same, even though they have complied with the directions so far as UCB system is concerned. 37. Learned senior counsel further submits that Section 42 of the Act does not authorize, in any case, the CCI to pass any interim orders. It is only in case an inquiry under Section 19 of the Act is pending adjudication, that the powers to pass interim orders under Section 33 of the Act can be invoked. 38. Predicated on the aforesaid submissions, Mr. Sethi submits that the applications under Section 42 of the Act are a gross abuse of the process of law and do not attract the Doctrine of Necessity. 39. Touching lightly upon the merits of the case, Mr. Sethi submits that so far as the challenge to the charges levied by the respondent nos. 2 to 5 is concerned, there is no finding against the respondent nos. 2 to 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an issue which have been decided by the CCI. On that basis, learned senior counsel submits that the observations and findings reached by the CCI is final and binding upon the petitioner. Thus, neither the application under Section 42 of the Act nor the present petition is maintainable either on facts or on law. 45. Buttressing the aforesaid submissions, learned senior counsel, invited attention of this Court to Paras 327, 398, 399 and 400 of the Final Order dated 25.10.2022 passed by the CCI. Learned senior counsel submits that considering the findings reached and mentioned in the aforesaid paragraphs and having not challenged the same, the filing of the application under Section 42 is a bogey raised by the petitioner in order to pre-empt the respondents from launching the UCB Pilot System on 26.04.2023. 46. Learned senior counsel also submits that the fee was always a part of the monetization model which the petitioner was aware of and keeping in view of the aforesaid finding of facts, and not having raised an issue of the fee charged, the petitioner was precluded from now raising the false issue on that basis. 47. Learned senior counsel, however, further submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the facts of the present case and thus, the present writ petition ought to be dismissed. ARGUMENTS OF RESPONDENT No.6: 52. Mr. Jayant K. Mehta, learned senior counsel appears on behalf of respondent No.6, who was one of the informants before the CCI when it was proceeding to conduct inquiry under section 19 of the Act. Mr. Mehta, learned senior counsel had generally supported the arguments addressed on behalf of the petitioner, since the petitioner as well as respondent No.6 were, ad idem, so far as the petition under Section 19, pending before the CCI, was concerned. 53. Mr. Mehta, learned senior counsel had argued primarily on the following two grounds:- (a) First, that the interpretation of Section 15 of the Act, as is the settled law, has to be taken on the face of the language employed in the said section, in that, unless there is an ambiguity in the language employed, the interpretation ought to be on the basis of plain reading; (b) Second, the judgment of this Court in Cadd Systems (supra) holds the field so far as the interpretation of Section 15 of the Act is concerned and, therefore, there is no requirement for this Court to consider the ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of different laws applicable on entirely different contexts and thus, the same cannot be taken into consideration as a precedent for this Court to consider, since the same actually inflict violence on the intention of the legislature for incorporating Section 15 into the Act. In other words, learned senior counsel submits that the ratio decidendi in the cases relied upon by the other respondents are not at all applicable to the facts of the present case and as such cannot be considered by this Court. 57. By referring to the list of dates between 24.08.2022 and 01.09.2022, learned senior counsel submits that the UCB system was projected subsequent to the conclusion of the final arguments before the CCI. On that basis, Mr. Mehta submits that the argument of the other respondents that the CCI sanctified the UCB system, is without any merits. ARGUMENTS BY MR. N. VENKATARAMAN, LEARNED ADDITIONAL SOLICITOR GENERAL OF INDIA FOR CCI:- 58. At the request of Mr. Venkataraman, learned ASG, the opportunity to argue after the conclusion of arguments of the petitioner as well as the other respondents, was afforded. 59. Learned ASG has submitted that the CCI has no adversari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a guiding factor by the CCI. 62. On a query by this Court on the alternate relief as provided under Section 42A of the Act to persons such as the petitioner and thereby disentitling the petitioner from pursuing his remedies under Section 42 of the Act is concerned, Mr. Mehta learned senior counsel submits that firstly, Section 42A does not emasculate the right to specific performance and secondly, does not contemplate disentitlement of the petitioner or any such person to the other remedies available in the Act. Drawing attention to the opening words of Section 42A, Mr. Mehta submits that it is clear that the provisions under Section 42A are in addition to and not in derogation of, nor depriving the petitioner from redressing its grievances on the basis of Section 42 of the Act. 63. In rebuttal, Mr. Roy, learned counsel for the petitioner reiterates his arguments and adopts the arguments addressed by Mr. Jayant K. Mehta, learned senior counsel appearing for respondent no.6. ANALYSIS AND CONCLUSION: 64. This Court has heard the submissions made on behalf of the respective parties and considered the ratio laid down in various judgments passed by the Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the constitution of the Commission would not invalidate the proceedings of CCI. It is trite that a statutory interpretation ought to be based on plain reading of the Section itself unless there is any ambiguity which would entail reliance upon extraneous materials. This Court gathers support of the aforesaid interpretation from the judgment rendered by a Coordinate Bench of this Court in Cadd Systems (supra) whereby the provisions of Section 15 were called for interpretation. Learned Single Judge of this Court had categorically concluded, after considering the judgment of Mahindra and Mahindra (supra), that the provisions of Section 15 make it amply clear that no act or proceedings of the CCI would be invalid by reason of any vacancy or defect in the constitution. Learned Single Judge further observed, in the facts of that case, that though there was a requirement of a judicial member to be appointed to CCI, however, the orders passed by the CCI pending such appointment could not have been called into question. Learned Single Judge also relied upon the judgment of the Hon ble Supreme Court in B.K. Srinivasan (supra) to conclude that the challenge to the defects of constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission. (3) The Chairperson and other Members shall be whole-time Members. From a plain reading of the aforesaid provision, it is clear that there is no prescription as to what would be the minimum number of members who would constitute a valid quorum. As such, the argument that the Act prescribes a minimum number of members who would validly constitute the quorum, so far as the adjudicatory role of the CCI is concerned, is without any legs to stand. 72. Further to the aforesaid, this Court has generally considered various provisions of the Act in general and has observed that there is no provision which prescribes minimum number of members who would validly constitute a quorum of CCI in its adjudicatory proceedings. It is trite that Courts cannot read into an enactment, something which is conspicuous by its absence. Moreover, the Court has to assume that if there is any absence of a provision, the legislature in its wisdom thought it appropriate not to engraft the same. In that, the preamble of the Act provides the foundation for engrafting and promulgation of such provisions for the Act. The same is reproduced herein:- An Act to provide, keeping in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rum for any meeting to be consisting of three members mandatorily. The provisions of Section 22 appear to be purely in respect of administrative action to be undertaken by the commission and have no nexus with the adjudicatory process, inasmuch as, no adjudicatory process can be rendered by a decision of majority of the members present and voting, which could be comprehensible only in context of a meeting, which does not have entrapment of an adjudicatory process. Clearly an adjudicatory process would involve an application of mind and determination of issues in the judicial sense. 74. In view of the aforesaid observation, the arguments of Mr. Sandeep Sethi, learned senior counsel in respect of quorum being complete only if three members of the CCI, including the Chairperson, constitute the same, is untenable. For the same reason, the argument of Mr. Sethi, learned senior counsel that the word vacancy used in Section 15 read with sub-section 3 of Section 22 of the Act mean that the word vacancy would be applicable only and only if the vacancy is in respect of members more than three and less than seven, would also be untenable, considering the plain language of both the Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sity as rendered by the Hon ble Supreme Court in J. Mohapatra s (supra), it is clear that it is only when an adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent Tribunal can be constituted, that the doctrine of necessity may become applicable. The Hon ble Supreme Court has also held that in such cases, the principles of natural justice would have to give way to the necessity, for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. 80. Having regard to the aforesaid position of law, clarified by various judgments of the Hon ble Supreme Court, on the doctrine of necessity, this Court has to now consider whether the same would be applicable at all. 81. The arguments rendered by learned senior counsel for the respondent nos. 2 to 5 would make an attempt to bring the issues raised by the petitioner in his application under Section 42 of the Act and the proceedings sought to ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence with a non obstante clause and therefore would not override the other provisions of the Act. Thus, the said contention is rejected for the aforesaid reasons. 86. Learned senior counsel had also submitted that the petitioner was already aware of the UCB Pilot system even prior to the filing of the applications under Section 42 of the Act and therefore the urgency as alleged by the petitioner in respect of the intended launch of the UCB Pilot system on 26.04.2023, would not entitle the petitioner from invoking the doctrine of necessity. Keeping in view of the conclusions already drawn by this Court in respect of invoking of doctrine of necessity, the requirement to consider disputed factual aspects is not necessary in the present proceedings under Article 226 of the Constitution of India. 87. In the present case, none of the learned senior counsel appearing on behalf of the respondents, at all submitted that the members who presently comprise the CCI are disqualified for any reason. Having regard thereto, the question of examining whether the doctrine of necessity is or is not applicable to the present case does not arise at all. 88. Moreover, according to Mr. N. Venkat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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