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TMI Blog2011 (12) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 2003 between the first respondent- Ministry of Railways and the third respondent- Steel Authority of India (SAIL), as the petitioner has already challenged it before Competition Commission of India being anti-competitive. 2. Since preliminary objection regarding maintainability of this writ petition was raised by learned senior counsel for the respondents, when petitioner had come up with an application to amend the writ petition to specifically challenge the Memorandum of Understanding of 1st February, 2003, therefore, submissions advanced by both the sides on the aspect of maintainability of this writ petition as well as on the applications for amendment of the writ petition and directions, were heard together and are being dealt with in this common order. 3. Though the relief sought in this writ petition and before the Competition Commission of India is not identical but in substance the nature of relief sought in these two proceedings is substantially the same, as is asserted by Mr. Dutta learned Senior Counsel for the respondent- railways, who fervently urged to terminate these writ proceedings forthwith because according to the respondents, prosecution of the two remedie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me into play, as Competition Commission of India is really not a Forum because Competition Commission of India can suo moto proceed under Section 19 of The Competition Act, 2002. 8. On the aspect of maintainability of the writ petition, the applicability of doctrine of election of remedies put forth by the Respondents, was disputed by learned senior counsel for the petitioner and by relying upon the decision of the Apex Court in Transcore vs. Union of India, (2008) 1 SCC 125, it was urged that the doctrine of election will apply only where the remedies in question are repugnant or inconsistent with each other and this doctrine would not apply to the instant case to frustrate the legitimate claim of the petitioner based on promissory estoppel and of legitimate expectation of being considered for empanelment for supply of steel rail tracks to the Respondent - Railways and because the relief sought in the writ petition springs out of the fundamental rights of the petitioner which can be granted by this Court while exercising jurisdiction under Article 226 of the Constitution of India and the relief sought in the writ petition cannot be granted by Competition Commission of India in pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of jurisdiction of civil courts to "entertain any suit or proceedings" and the CCI alone may enforce the Act. 1. The remedy under Article 226 is also in addition to the other remedies that are available in law including under Statutes. Although it is a constitutional remedy that cannot be taken away by statute, the High Courts will refrain from exercising their jurisdiction under Article 226 where an equally efficacious alternate remedy is available, subject only to certain well recognized exceptions. Section 62 of the Competition Act states that the provisions of the Act "shall be in addition to, and not in derogation of the provisions of any other law for the time being in force". Therefore, no one can stop Competition Act proceedings on the grounds of any other proceedings pending before any other forum. 10. On the strength of the decisions in 'Fair Air Engineers vs. N K Modi' (1996) 6 SCC 385; 'State of Karnataka vs. Vishwabharti House Building Coop. Society' (2003) 2 SCC 412; 'Indian Medical Association vs. V P Shantha & Ors' (1995) 6 SCC 651; 'Ankur Exports Pvt. Ltd. Vs. Monopolies and Restrictive Trade Practices Commission & Ors.,' 2010 (116) DRJ 518 (DB); 'Transcore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here would be no inconsistency if the CCI were to find that the MoU did not have appreciable adverse effects on competition and could continue. The result would be that the Railways would be forced to terminate the MOU but could enter into it again after taking into account relevant considerations while eschewing irrelevant considerations. (e) On the other hand, if this Court were to find that the Railways' decision-making process in entering into the MoU or its failure to conduct an annual review did not violate Article 14, the CCI could still find that the MoU does have appreciable adverse effects on competition for purposes of Section 3 of the Competition Act and must be terminated. (f) In no case, therefore, could there ever be any inconsistency or repugnancy between the Judgment of this Court in the writ petition and that of the CCI because they operate in entirely different fields." 11. Learned senior counsel for the petitioner thus submitted that in the instant case fundamental rights of the petitioner cannot be curtailed and so, the petitioner ought to be allowed to pursue parallel proceedings as the merits of the writ petition cannot be pre-judged while deciding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly demarcate the grounds and the reliefs sought in the writ petition from those in the CCI proceedings; and (ii) the additional information sought by the petitioner under the RTI Act from the Railways, which includes Railways file notings relating to the MoU with SAIL that confirm that no annual review has ever been conducted by Railways as required under the MoU. 17. Although there are averments in respect of the Memorandum of Understanding of 1st February, 2003 in the writ petition but for undisclosed reasons, the said Memorandum of Understanding of 1st February, 2003 was not challenged in the writ petition and is now being sought to be challenged being in violation of Article 14 and 19 of the Constitution of India. It was urged on behalf of the petitioner by Mr. Singhvi, learned senior counsel that the proposed amendment is necessary to decide the dispute herein and it does not result in any injustice to the opposite side and for the delay occasioned, the opposite side can always be compensated with costs. It was also urged by Mr. Singhvi, learned senior counsel for the petitioner that the merits of the amendments sought is not required to be gone into, as the same would be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng amendment of pleadings is quite liberal. Apex Court in a recent decision in Surender K. Sharma vs. Makhan Singh, (2009) 10 SCC 626 has gone to the extent of declaring that even belated application for amendment is not liable to be rejected merely on the ground of delay, if the Court finds that by allowing such application, real controversy between the parties can be resolved, then the wide discretion to deal with such applications should be exercised in such a manner that full and complete justice is done to the parties and for the delay occasioned, the opposite side can be always compensated with costs. 21. Though the averments regarding the Memorandum of Understanding of 1st February, 2003 in question are very much there in the writ petition but it appears that perhaps due to inept drafting, prayer for declaring the Memorandum of Understanding of 1st February, 2003 as null and void was not made in the writ petition. Since this Memorandum of Understanding of 1st February, 2003 is the real dispute between the parties, therefore, even if the application for amendment is belated, still it cannot be thrown out on this ground as for effective hearing and decision in this matter, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterprise a penalty of not more than ten per cent. of its average turn-over for the last three financial years. It can also order division of dominant enterprises. It will also have power to order demerger in the case of mergers and amalgamations that adversely affect competition. 24. The aforesaid objects were achieved when the Competition Bill, 2001 became The Competition Act of 2002 effective from 13th January, 2003 and it became substantially operative with effect from 15th May, 2009 i.e, after the filing of this writ petition. Upon close scrutiny of the provisions of the Competition Act, 2002, it transpires that it is a complete Code in itself which even provides for award of compensation to the affected/aggrieved party. 25. For deciding this issue of maintainability of the writ petition, it has to be kept in mind that the averments made in the writ petition have to be read as it is and the merits of the averments are not to be gone into for deciding this issue. Apart from the Memorandum of Understanding of 1st February, 2003, the larger issue raised in the writ petition is the legitimate expectation of the petitioner for being considered for empanelment for supply of steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l with the issues related to breach of Constitutional rights, promissory estoppels, legitimate expectations, etc. which can be decided by the High Court in exercise of its writ jurisdiction. 10.2.3 Parties: The writ petition in the Hon'ble Delhi High Court has been filed against Union of India. On the other hand, under the Act, the action is being brought against SAIL. By an application dated 1st July, 2009, SAIL requested the Hon'ble High Court that it be impleaded as an interested party to the writ proceedings. The decision of the Hon'ble High Court on SAIL's application is still pending. 10.2.4 Remedies: The remedies sought pursuant to the writ petition are to : a) pass an writ of mandamus or order, as appropriate, directing IR to procure the rails by way of a competitive bidding process. b) direct IR to empanel JSPL for the purpose of purchase of rails; and c) strike down the policy of IR to procure its entire requirement of rails from only a single supplier without following a competitive and transparent process. Under Section 27 of the Act, if there is a finding of an existence of abuse of dominance or anti-competitive agreement, the Competition Commission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpetition Commission of India, therefore though the writ proceedings are allowed to continue as issue of promissory estoppel and legitimate expectation cannot be pre-judged at this stage, but the final order in this matter has to be put on hold till the validity of the Memorandum of Understanding of 1st February, 2003 is finally decided in the proceedings under the Competition Act, 2002. While declaring that the doctrine of election of remedies cannot be applied to the instant case, it is held that this writ petition is maintainable and the parallel proceedings are permitted to continue in the manner as indicated above. 29. Accordingly, in terms of paragraph no: 21 of this order allowing C.M. Appl. No. 19744/2010, petitioner is granted four weeks to place on record the amended writ petition and Respondents are also granted four weeks time to respond to it. Rejoinder, if any, within two weeks thereafter. 30. List before the Registrar on 10th February, 2012 for completion of pleadings. C.M. No. 3268/2010 (Directions) 31. This application by Respondent - SAIL for staying the proceeding in this writ petition filed on 26th February, 2010, till the issue regarding the maintainability ..... X X X X Extracts X X X X X X X X Extracts X X X X
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