Hemant Sharma And Ors vs Union Of India And Ors
2011 Latest Caselaw 5336 Del

 *      IN THE HIGH COURT OF DELHI AT NEW DELHI


 +                    Date of Decision: 04.11.2011


 %                        W.P.(C) 5770/2011


        HEMANT SHARMA AND ORS                          ..... Petitioners
                     Through:        Ms. Rekha Palli, Advocate

                     versus

        UNION OF INDIA AND ORS                         ..... Respondents
                        Through:     Mr. Neeraj Chaudhari, CGSC with
                                     Mr. Khalid Arshad, Advocate for
                                     UOI.
                                     Ms. Manmeet Arora with Ms.
                                     Fareha Ahmed Khan, Advocates for
                                     respondent no.2.


        CORAM:
        HON'BLE MR. JUSTICE VIPIN SANGHI

        1. Whether the Reporters of local papers may
           be allowed to see the judgment?           :        No

        2. To be referred to Reporter or not?           :     Yes

        3. Whether the judgment should be reported
           in the Digest?                               :     Yes



 VIPIN SANGHI, J. (Oral)

1. By this petition, the petitioner seeks the issuance of a writ of

mandamus to direct respondent no.1 i.e. UOI to the Secretary, Ministry

of Youth Affairs & Sports, to take appropriate steps so that respondent

no.2 i.e. All India Chess Federation does not ban/threaten to ban chess

players, associating themselves with other chess associations.

Respondent no.2 is the National Federation for the sport of chess,

recognized by respondent no.1. Respondent no.2 also is the body

recognized by the concerned international federation i.e. Federation

Internationale Des Echess (FIDE).

2. The petitioners claim to be chess players. In the past, they have

registered themselves with respondent no.2 on an annual basis. They

have been participating in chess tournaments organized by respondent

no.2, and those which respondent no.2 has authorized or approved.

The case of the petitioners is that the petitioners being amateurs, like

to play chess whenever an opportunity presents itself, even in those

tournaments not organized by respondent no.2 or which may not have

the blessings of respondent no.2.

3. The submission of the petitioner is that respondent no.1 has

issued the revised guidelines for assistance to National Sports

Federation (NSF). Under these guidelines, it is provided that National

Sports Federations shall be fully responsible and accountable for the

overall management, direction, control, regulation, promotion,

development and sponsorship of the discipline for which they are

recognized by the concerned International Federation. They are

expected to discharge their responsibilities in consonance with the

principles laid down in the OIympic Charter, or in the charter of the

Indian Olympic Association, or the relevant International Federation as

the case may be. These guidelines further provide that the NSFs

should maintain certain basic standards, norms and procedures with

regard to their internal functioning, which conform to the high

principles and objectives laid down by the concerned international

federation, and which are also in complete consonance with the

principles laid down in the Olympic Charter or in the constitution of the

Indian Olympic Association. The sports federations seeking recognition

as NSFs are required to apply as per the guidelines contained in

Annexure P-II to the said guidelines contained in Memorandum No.F.6-

6/94-SP-III. The considerations which the Ministry of Youth Affairs &

Sports shall take into account and be guided by, inter alia, are that the

sports federation is recognized by the international federation and the

Asian federation, the role played and contribution made by the

association in promoting and developing sports in India, and the role

played by the association in protection and promotion of players

interest and welfare.

4. Ms. Palli, learned counsel for the petitioner points out that the

FIDE has laid down the moral principles of FIDE which are applicable to

FIDE for non-FIDE chess competitions. The second principle laid down

is that FIDE reaffirms its commitment to the right to play chess and

opposes all actions that would hinder that right. Ms. Palli further

submits that under the guidelines issued by the Ministry of Youth

Affairs & Sports, it is the obligation of respondent no.2 to protect the

right of the players to play chess and to oppose all organized actions

which would hinder that right of the petitioners to play chess. Ms. Palli

further submits, by reference to the aforesaid guidelines that the NSFs

are primarily responsible for judicious selection of sports persons for

participation in major international events based on merit and with the

object of enhancing national prestige and bringing glory to the country.

The NSFs are expected to introduce seeding and ranking systems

which would provide an automatic and transparent system of selection.

The NSFs are also required to introduce machinery for the redressal of

players‟ grievances. Such federations are also expected to evolve a

system of extensive local competitions.

5. The procedure for suspension/withdrawal of recommendation is

contained in Annexure III of the said guidelines. One of the reasons for

which the recommendation may be withdrawn by respondent no.1, in

respect of NSF, is that where in the judgment of the Government of

India, the federation is not functioning in the best interest of

development of sports for which the federation was granted

recognition.

6. The grievance of the petitioners is that respondent no.2 prohibits

chess players who are registered with it from playing in any

tournament, or participating in any competition of chess, if such a

tournament/competition is organized by an association/federation or

other body which does not have the approval of respondent no.2. Ms.

Palli submits that the said conduct of respondent no.2 is highly

monopolistic and anti-competitive. Respondent no.2 being the

internationally recognized sports federation is exploiting its dominant

position to impose such unreasonable restrictions on the rights of the

players, by issuing caution notices and by claiming that such conduct

of the players is detrimental to the interest of respondent no.2. In this

respect, Ms. Palli has drawn my attention to the caution notice

displayed by respondent no.2 on its website. The said caution notice

reads:-

Caution

"This is to inform all chess players/organizers/officials that any chess event organized under the banner of "Chess Association of India" is not recognized by the All India Chess Federation.

A reminder of our earlier circular

CAUTION

A set of disgruntled elements have announced that they have formed a Chess Association as rivals to the All India Chess Federation. In their mails the Chess Association of India has announced that, with the permission of World

Chess Federation Inc ( a rival to FIDE) they will organize an open tournament at Delhi from 23rd Dec weith a Prize fund of Rs.15 lakhs.

All India Chess Federation cautions all chess players affiliated to us not to participate in these tournaments or any other tournament to be organized by Chess Association of India in future as their events are not recognized by All India Chess Federation and as such not authorized by AICF. This is to further remind all AICF registered players that you have signed a declaration in the players registration form, which we quote for your ready reference.

"I also declare that I will not participate in any unauthorized tournament/championship."

By playing in the tournaments conducted by Chess Association of India, the registered players of AICF will attract disciplinary action and hence are cautioned against playing in the tournaments to be organized by the rival body. - Published on 09th December, 2009."

7. Ms. Palli submits that one of the petitioner‟s made an enquiry

under the Right to Information Act on respondent no.2. The first query

was whether respondent no.2 had removed or recommended the FIDE

to remove the rating of some chess players of India. The said query

was answered in the affirmative by respondent no.2. The second

query was that on what charges and under which clause of the

byelaws of Federation such recommendation was made? The answer

to the said query given by respondent no.2 reads as follows:-

"Ans: Action was taken under the following Sections/Clause of the bye laws of All India Chess Federation,

Section 9(n) : To take disciplinary action against its members, the office bearers, officials and players recognized by the federation or of any recongised Members.

Section 16(b)(XV) : To take disciplinary action against Officials and Players concerning the charges leveled.

Section 27. Rules and Regulations:

All Rules and Regulations framed for relevant purposes or on any matters and adopted by the Central Council and the General Body shall have the same force as this Constitution.

Rule II of Annexure to the Bye Laws:

(C) Players shall desist from indulging in any act detrimental to the interests of Federation.

(j) Players shall not fraudulently participate in events.

(v) Any other act which is against the aim and objects of the Federation and detrimental to its interests.

(x) Players shall strictly abide by the Constitution, Rules Regulations and Orders/Instructions of the Federations in force from time to time and also abide by the instructions of the Arbiters and AICF Office Bearers.

As per players Registration form

DECLARATION

2. I also declare that I shall abide by the rules and regulations and the latest amendments and decisions of the State/District Chess Association/Federation as the case may be and cooperate with the officials in participating in State and National Tournaments/Championships.

3. I also declare that I will not participate in any

unauthorized tournament/championship".

8. Ms. Palli submits that the Railway Sports Promotion Board, which

is also affiliated to respondent no.2 federation issued a circular dated

24.6.2011 to the effect that some railway chess players had

participated in chess tournaments which were not authorized by

respondent no.2. Respondent no.2 had relied upon its rule that a

player who is registered with respondent no.2 cannot play in any

unauthorized tournament and if he does so, he shall attract disciplinary

action. The Railway Sports Promotion Board has, therefore, directed

that chess players who have participated in any chess tournament

which does not figure in the tournament calendar of respondent no.2

and is not recognized by respondent no.2 should not be allowed to

participate in the tournament organized by Railway Sports Promotion

Board. Ms. Palli submits that when the petitioner made a

representation to respondent no.1 against the aforesaid conduct of

respondent no.2, respondent no.1 has merely forwarded the

petitioners grievance to respondent no.2 and obtained its response

without examining the position itself. Respondent no.2 in its

communication dated 10.05.2011 has, interalia, stated as follows:-

"The players who are registered with All India Chess Federation are bound by the Rules and Regulations of the Federation. Those players who want to be part of the Federation have to follow these rules. As per the Rules of

the Federation no player can participate in unauthorized/illegal tournaments which are not recognized or approved by the Federation. This fact is known to all the players and the same is posted on our website.

Some former office bearers of the Federation who have been expelled /suspended for their acts of omissions and commissions have floated a new body called the "Chess Association of India" claiming themselves to be a parallel body to the All India Chess Federation. They are organizing tournaments and also naming some of these tournaments as National Championships. This according to us is a criminal act as the players are duped that the certificates issued by them is valid for employment opportunities in government and public sector undertakings.

We have prominently displayed on our website that players participating in such tournaments are liable for disciplinary proceedings and cautioned them against participating. Despite this some players have participated in unauthorized tournaments and as such they seized to become our members. The Federation is not duty bound to offer secretarial services to these players. Moreover, the Federation pays a fee to each of our members to the FIDE annually.

Our Central Council has decided to inform FIDE about the players who are no longer our members and to withdraw their ratings. They are free to play in tournaments not approved by us. We cannot stop them in playing unapproved/illegal tournaments. But they cannot continue to be our members. So it is wrong to say that our actions are undemocratic or illegal.

We enclose the players registration form wherein the players have to sign a declaration stating that they will not play in unauthorized tournaments, is highlighted for your immediate reference. We are also enclosing a copy of our notification on our website cautioning the players against participating in unauthorized/illegal tournaments".

9. The aforesaid conduct or stand of respondent no.2 is not denied

by learned counsel for respondent no.2 In fact, she has drawn my

attention to the declaration that chess players make at the time of

seeking registration. The said declaration, inter alia reads as follows:-

"I also declare that I shall abide by the rules and regulations and the latest amendments and decisions of the State/District Chess Association/Federation as the case may be and cooperate with the officials in participating in State and National Tournaments/Championships."

10. She has also drawn my attention to the annexure to the

constitution and byelaws of respondent no.2 which, inter alia provides

in clause(z) as follows:-

"No player shall participate in any tournament not authorized by All India Chess Federation or by its affiliate members or District Associations and units affiliated to them. The above violation shall attract disciplinary proceedings including cash penalties apart from debarring from participating in any tournaments in future."

11. Learned counsel for respondent no.2 submits that there is no

challenge by the petitioner to the constitutional byelaws of respondent

no.2 in the present petition and even if such a challenge were to be

raised, this is not the right forum. She also submits that respondent

no.1 does not retain any supervisory jurisdiction over respondent no.2.

Consequently, this Court cannot issue any direction to respondent

No.1, as prayed for in this petition. She further submits that

respondent no.2 is not even located within the jurisdiction of this Court

and, even according to the petitioner, no relief is directed against

respondent No.2 directly. The prayer made in the petition is directed

only against respondent no.1, though it affects respondent no.2 as

well.

12. The petitioner indeed has not been able to point out any

statutory obligation on the part of respondent no.1 to issue the

directions as sought for in this petition pertaining to respondent no.2

In the absence of such authority and responsibility vested in

respondent no.1, this Court is not inclined to entertain the present writ

petition and grant the relief as sought for in this petition.

13. However, in my view, the matter does not end there. Prima

facie, it appears to me that the endeavour of respondent no.2 appears

to be to exercise its monopolistic and dominant position to stifle the

growth of any other association of chess players, by threatening the

chess players registered with it, with disciplinary action/expulsion and

a virtual boycott in case they participate in tournaments organized by

such other associations. The policy and conduct of respondent No.2

may, therefore, call for examination by the Competition Commission

constituted under the Competition Act, 2002.

14. Learned counsel for the petitioner has relied upon the decision of

the Supreme Court in State of West Bengal and Others Vs.

Committee for Protection of Democratic Rights, West Bengal

and Others, AIR 2010 SC 1476. The issue considered by the Supreme

Court in this decision was whether the High Court, in exercise of this

jurisdiction under Article 226 of the Constitution has the power to

direct the CBI to investigate a case within its territorial jurisdiction

without the concurrence of the State Government, as is required under

Section 6 of the Delhi Special Police Establishment Act, 1946 under

which the CBI has been constituted. The Supreme Court has held that,

in deserving and exceptional cases, the Court may direct the CBI to

cause an investigation to be made in such like cases.

15. Learned counsel for respondent no.2 has sought to explain that

under the scheme of things, as it exists not only in this country, but

internationally, only one federation is recognized at the district, state

and national level- which also obtains recognition from the

international body pertaining to the discipline of sport in question. By

reference to the guidelines, she submits that only that sports

federation, which is recognized by the concerned international sports

council, is granted national recognition by the Government of India.

16. The issue is not about the recognition of respondent no.2 as the

NSF. The issue is with regard to the right of the players of chess to

form another association and to organize tournaments in the country

without the involvement of or the blessings of respondent No.2. The

issue is with regard to the right of the players to freely participate in

tournaments so organized, without the fear of being hounded by

respondent no.2 and without the fear of the Sword of Damocles falling

on their heads, if they participate in such so-called illegal or

unauthorized tournaments.

17. Respondent no.2 has been given the mandate to select the

players who would eventually be entitled to participate in international

tournaments. Respondent no.2 also flexes its muscles by instructing

FIDE to remove the ranking of the chess players who participate in

unauthorized or illegal tournaments. Therefore the dependence of all

players on respondent no. 2 for registration cannot be

overemphasized.

18. I have put it to learned counsel for respondent no.2 as to why

this Court should not refer the constitutional provisions, rules and

regulations and the aforesaid conduct and practice of respondent no.2

for investigation and inquiry by the Competition Commission

constituted under the Competition Act, 2002, as I am inclined to do so.

Learned counsel for respondent no.2 submits, by reference to the

Statement of Objects and Reasons, and the preamble of the

Competition Act, that the said Act has been enacted to deal with

commercial matters only. The Statement of Objects and Reasons of the

said Act shows that the said Act has been enacted by the Parliament as

a result of the opening up of the economy, in pursuit of globalization.

The purpose is to gear up the Indian market to face competition from

within, and outside. The Preamble of the Act provides that the Act is

enacted in view of the economic development of the country, to

prevent practices having adverse effect on competition, to promote

and sustain competition in markets, to protect the interests of

consumers and to ensure freedom of trade carried out by other

participants and markets in India. She also refers to the judgment of

the Supreme Court in Competition Commission Vs. Steel

Authority of India Limited and Another, (2010) 10 SCC 744,

wherein the Supreme Court sets out the background in which the

Competition Act has been enacted and the purpose for which it has

been enacted.

19. Ms. Manmeet Arora, submits that respondent no. 2 NSF is not

covered by the Competition Act. She further submits that the power to

make a reference under Section 19(1)(b) of the Competition Act is

vested with the Central Government, or the State Government or the

statutory authority. She submits that the expression "statutory

authority" is defined in Section 2(w) of the Act to mean any authority,

board, corporation, council, institute, university or any other body

corporate established by or under any Central, State or Provincial Act

for the purposes of regulating production or supply of goods or

provision of any services or markets therefor or any matter connected

therewith or incidental thereto. She submits that this Court is not a

statutory authority as it is constituted under the Constitution of India.

20. She further submits that the reference can be made by a

statutory authority under Section 21 of the Act. This Section

postulates that where the statutory authority, during the course of any

proceedings before it, is inclined to make any decision which would be

contrary to the provisions of the Competition Act, such authority may

make a reference to the Competition Commission. Upon receipt of

such reference, the Competition Commission is required to give its

opinion and to send the same to the statutory authority. She submits

that this Court is in the process of disposing of this petition and the

situation contemplated by Section 21 of the Act does not exist in the

facts of this case. She submits that the opinion of the Competition

commission is not binding on this Court. In fact, the decisions of the

Competition Commission are subject to judicial review before this

Court. She also submits that this Court is not exercising territorial

jurisdiction over respondent no.2 and, therefore, this Court has no

jurisdiction to refer the case of respondent no.2 for examination by the

Competition Commission.

21. Learned counsel for the respondent submits that the decision in

State of West Bengal (supra) is of no avail to the petitioner for the

reason that the issuance of the direction by the High Court for the

conduct of investigation by the CBI was upheld in the peculiar

circumstances of that case. It was found, as a matter of fact, that the

local police was not investigating the case which involved the death of

eleven persons while few others were missing The allegation in that

case was that the ruling party in the State was not interested in the

conduct of fair and local investigation. She submits that it is open to

the petitioner to approach the Competition Commission on its own and

this Court should not, therefore, make a reference to the Commission

under Article 226 of the Constitution. She also relies on

T.C.Thangaraj; P.Suganthi & Anr Vs. V. Engammal & Ors.,

2011(8) Scale 120, wherein the Supreme Court reversed the decision

of the High Court directing investigation by the CBI in a case where the

allegation was that, since one of the accused was a police officer, the

local police was not conducting the investigation properly. The

Supreme Court held that if the High Court found that the investigation

was not being completed because one of the accused was an Inspector

of Police, the High Court could have directed the Superintendent of

Police to entrust the investigation to an officer, senior in rank to the

Inspector of Police under Section 154(3) Cr.P.C and not to the CBI. The

Supreme Court also referred to Section 156(3) of the Cr.P.C which

provides a check on the performance by the police of their duties,

and where the Magistrate finds that the police have not done their duty

or not investigated satisfactorily, he can direct the Police to carry out

the investigation properly, and can monitor the same.

22. In her rejoinder, learned counsel has drawn my attention to

Section 2(h) of the Competition Act, which defines the expression

`enterprise‟ to mean "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 include any activity

of the Government relatable to the sovereign functions of the

Government including all activities carried on by the departments of

the Central Government dealing with atomic energy, currency, defence

and space."

23. The expression „activity‟ has been defined to include profession

or occupation. Respondent no.2, admittedly, charges a registration fee

on an annual basis. She submits that respondent no.2 also charges fee

from players to participate in tournaments organised by it.

24. Section 2(f) defines the expression „consumer‟ to, inter alia,

mean, "any person who (i)--------------------------------------------------------------

(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;"

25. It is argued that when the departments of the government,

engaged in, inter alia, provision of services of any kind are covered by

the expression „enterprise‟, certainly respondent No.2 cannot escape

from the scope of that expression. It is argued that respondent No.2

itself claims to be rendering service to the players registered with it for

a charge, and the petitioners are the consumers of the said services.

Respondent No. 2, admittedly, charges a registration fee on an annual

basis. She submits that respondent No. 2 also charges fee from

players to participate in tournaments organized by it. It is, therefore,

argued that respondent No.2 is covered under the Competition

Commission Act, 2002. She further submits that the caution that the

High Court needs to exercise, in exercise of its jurisdiction under Article

226, while referring a case for investigation to the Competition

Commission is not comparable to the situation where the High Court

seeks to substitute the CBI as the investigating agency. This is

because the said direction of the Court seeks to substitute the normal

investigating agency i.e the local police concerned with the CBI, and

that too without the concurrence of the State Government. She

submits that under Section 19 of the Competition Act, the power of

the Commission to cause an investigation can be exercised suo moto

or upon information being received from any person, consumer or their

association or trade association. When any person or consumer can

seek investigation of a case by the CCI, certainly this Court, in

appropriate cases, can ask the CCI to look into a case.

26. Having heard learned counsel for the parties, prima facie, it

appears to me that respondent no.2 is rendering services to the

petitioners and to all others who are registered with it as chess

players. The responsibilities of respondent no.2 as an NSF are set out

in the guidelines issued by respondent no.1, some of which have

already been referred to earlier. Admittedly, respondent no.2

organises chess tournaments and provides technical support and

expertise for conduct of such chess tournaments. That, in my prima

facie view, would constitute service rendered by respondent no.2 to

the players who are registered with it. Such service is being rendered

for a consideration received from the players, as is evident from the

registration form, a copy whereof has been filed on record by

respondent no.2. It is also borne by respondent No.1 for the benefit of

all chess players who provides grants to respondent No.2.

27. Respondent no.2, prima facie, would also fall within the

expression `enterprise‟ as used in the Act which is very widely worded

to even include a person or a department of the government rendering

services "of any kind" and excludes only those activities of the

government which are relatable to sovereign functions of the

government and all activities carried out by the departments of the

Central Government dealing with atomic energy, currency, defence

and space. Respondent no.2 does not fall in any of the said

exceptions.

28. As aforesaid, it is engaged in rendering services of a kind. The

reference to the Statement of Objects and Reasons only shows that the

Competition Act came to be enacted in the wake of globalization and

opening up of India‟s economy. However, the said Act was also

enacted to replace the obsolete Monopolies and Restrictive Trade

Practices Act, 1969 which empowered the MRTP commission to enquire

into monopolistic and unfair trade practices. The reliance on the

Statements and Objects and Reasons of the Competition Act by

respondent no.2 is also of no avail in view of the express provisions

contained in the said Act which do not show that the provisions of the

said Act are applicable only to commercial establishments who provide

goods or render services. In Tribhuban Parkash v. Union of India,

AIR 1970 SC 540, the Supreme Court held that only when there is a

doubt as to the meaning of a provision, recourse may be made had to

the preamble to ascertain the reasons for the enactment and hence

the intention of the Parliament. If the language of the enactment is

capable of more than one meaning then that one is to be preferred

which comes nearest to the purpose and scope of the preamble. In

other words, Preamble may assist in ascertaining the meaning but it

does not affect clear words in a statute. The courts are thus not

expected to start with the preamble for construing a statutory

provision nor does the mere fact that a clear and unambiguous

statutory provision goes beyond the preamble give rise by itself to a

doubt on its meaning. Since the meaning of the expression

„enterprise‟, „service‟ and „consumer‟ as used in the Competition Act is

very clear, I am not inclined to accept the submission of respondent

no.2 founded upon a reading of the Statement of Object and Reasons

and Preamble to the Competition Act, 2002.

29. The Preamble of the Competition Act, when closely read, shows

that the said Act has been enacted to provide, keeping in view the

economic development of the country, for the establishment of a

Commission to prevent practices having adverse effect on

competition, to promote and sustain competition in markets, to

protect the interests of consumers and to ensure freedom of trade

carried on by other participants in markets, in India, and for matters

connected therewith or incidental thereto."(emphasis supplied).

30. Therefore, one of the purposes of the said Act is to prevent

practices having adverse effect on competition. The said practice need

not necessarily be related to trade or commerce.

31. The definition of the expression „enterprise‟ as used in the

Competition Act read with the definition of "service" thereof, in my

view, clearly shows that the respondent no.2 is an enterprise which is

covered by the said provisions. The allegation against respondent no.2

is that respondent no.2, by virtue of its agreement with the petitioners,

is seeking to control the provision of services which is causing adverse

effect on competition within India, in asmuch, as, the chess players

registered with respondent no.2 are not free to form another

association or to organize tournaments and participate therein, without

facing the consequence of losing their registration with respondent

no.2 which is the nationally recognized sports federation for the sports

of chess. The allegation also is that respondent no.2 is abusing its

dominant position as the NSF.

32. The submission of learned counsel for respondent no.2 is that, in

terms of its mandate, respondent no.2 is regulating the sport of chess

by preventing players registered with it from participating in chess

tournaments organized with other chess associations and

organizations which are not recognized by respondent no.2. she

submits this is done to protect the interest of the players from being

exploited by such other associations/organizations. Whether or not the

said activity of respondent no.2 falls foul of the Competition Act would

be an issue to be determined by the Competition Commission, and I

am not required to go into the said issue.

33. The power of this Court under Article 226 of the Constitution of

India extends to the issuance of appropriate directions, orders or writs

for enforcement of any of the rights conferred by Part III of the

Constitution or for any other purpose. Since in the present case the

petitioner has brought to this Court‟s notice the aforesaid state of

affairs in relation to respondent no.2, this Court is of the opinion that

the said aspects need thorough investigation under the provisions of

the Competition Act by the Competition Commission. There could be

breach of the petitioners fundamental rights to freedom, resulting from

the policies and practices of respondent No.2, as guaranteed under

Article 19(1)(c) and 19(1)(g) of the Constitution of India.

34. The Supreme Court in State of West Bengal (supra) has

recognized the power of the High Court, in appropriate cases, to

require the CBI to cause an investigation in relation to a case falling

within its territorial jurisdiction. If the High Court can direct the

investigation to be made by the CBI in appropriate cases, whereby the

provision of Section 6 of the Delhi Special Police Establishment Act,

1946 is over ridden, certainly the High Court can direct the making of

a reference to the Competition Commission under Section 19 of the

Competition Act, particularly when the Competition Commission can

cause the investigation to be made not only suo motu, but on receipt

of intimation "from any person". In fact, in State of West Bengal

(supra), the Supreme Court in paragraph 45 observed that being the

protectors of civil liberties of the citizens, the Supreme Court and the

High Courts have not only the power and jurisdiction, but also an

obligation to protect the fundamental rights, guaranteed by Part III in

general, and under Article 21 of the Constitution in particular, zealously

and vigilantly. The judgment in the case of T.C.Thangaraj (supra) has

no application in the light of the aforesaid discussion and the

substantially different positions of the Competition Act, 2002 and the

Delhi Police Establishment Act whereunder CBI is constituted.

35. I, therefore, direct the Competition Commission to enquire into

the alleged contravention of the provisions of Section 3 and Section 4

by respondent no.2 by its aforesaid constitutional provisions and

conduct under Section 26 of the Competition Commission Act, 2002.

The petitioner may appear before the Commission on 28.11.2011. The

petitioner shall present before the Commission a memorandum

containing its grievances in this respect on the said date.

36. It is made clear that observations made by me in relation to the

case of respondent no.2 are only prima facie, and shall not prejudice

their case and the Commission shall enquire into the same

independently.

VIPIN SANGHI, J NOVEMBER 04, 2011 as