Super Cassettes Industries Pvt. ... vs Union Of India & Ors.
2014 Latest Caselaw 5600 Del

$~20
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 7186/2014
       SUPER CASSETTES INDUSTRIES PVT. LTD.                    ..... Petitioner
                         Through:      Mr. Sunil Gupta, Sr. Adv. with Mr.
                                       Neel Mason and Mr. Ankit Relan,
                                       Advs.
                                    Versus
       UNION OF INDIA & ORS.                               ..... Respondents
                     Through:          Mr. Sanjeev Narula, Adv. for R-1.
                                       Mr. Sanjay Jain, ASG along with Mr.
                                       Tushar Gupta and Mr. Vidur Mohan,
                                       Mr. Abhimanyu Chopra and Ms.
                                       Noor Anand, Advs. for R-2.
                                       Mr. Rajshekhar Rao, Ms. Jasleen
                                       Oberoi and Ms. Surbhi Mehta, Advs.
                                       for R-3.
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                    ORDER

% 10.11.2014

CM No.18102/2014 (of the petitioner for stay).

1. The writ petition impugns various provisions of the Competition Act,

2002 as well as certain regulations of the Competition Commission of India

(General) Regulations, 2009 as unconstitutional being in violation of Article

14 of the Constitution of India. In addition, the petition also impugns the

Final Order dated 1st October, 2014 of the Competition Commission of India

W.P.(C) 7186/2014 page 1 of 11 (CCI) in case No.40/2011, imposing a penalty on the petitioner in the sum of

Rs.2,83,28,000/- payable within 60 days and directing the petitioner to file

undertaking in terms of directions contained in para 216 (i) of the order

within a period of 30 days from the date of receipt of the order.

2. The petition came up before this Court on 17 th October, 2014 when it

was ordered to be re-notified for 27th October, 2014. On 27th October, 2014

the petition came up before this Bench and was ordered to be re-notified on

28th October, 2014 along with the batch of connected matters. Since then the

petition is being taken nearly on a day to day basis along with the connected

batch of matters, and we have already heard the counsels for some of the

petitioners and the hearing is underway.

3. The writ petition was accompanied with CM No.16889/2014 for stay

of the order dated 1st October, 2014 of the CCI during the pendency of the

writ petition but till date, inspite of the matter having been heard / taken up

on 28th October, 2014, 29th October, 2014, 30th October, 2014, 31st October,

2014, 3rd November, 2014 and 5th November, 2014, the said application for

stay was not pressed. Now this fresh application for the same interim relief

has been filed inter alia stating that the time of 30 days for the petitioner to

W.P.(C) 7186/2014 page 2 of 11 file an undertaking is expiring tomorrow and thus it is imminent for the

petitioner to get interim stay.

4. The batch of connected matters comprises of W.P.(C) No.6610/2014,

W.P.(C) No.6634/2014, W.P.(C) No.7087/2014, W.P.(C) No.7121/2014,

W.P.(C) No.7306/2014, W.P.(C) No.7321/2014, W.P.(C) No.7327/2014,

W.P.(C) No.7334/2014, W.P.(C) No.7406/2014 and W.P.(C) No.7417/2014.

All the said petitions impugn the common order dated 25 th August, 2014 of

the CCI against each of the petitioners therein. Of the said batch of petitions,

W.P.(C) No.6610/2014 and W.P.(C) No.6634/2014 had come up before us

first on 26th September, 2014 when one of the contentions of the counsel for

the petitioners therein was that owing to vacancies, the Competition

Appellate Tribunal (CompAT) to which appeal admittedly was maintainable

against the order dated 25th August, 2014, was non-functional. In view of

this circumstance, notice of the said two petitions was issued and the

operation of the order dated 25th August, 2014 against the said two

petitioners stayed till 30th September, 2014.

5. On 30th September, 2014 we were told that though appointment to the

Office of the Chairperson of the CompAT had been made but appointments

W.P.(C) 7186/2014 page 3 of 11 to the Office of the Members of CompAT were still pending though

expected to be made soon. The counsels for the petitioners in W.P.(C)

No.6610/2014 and W.P.(C) No.6634/2014 on that date also argued that

though the order dated 25th August, 2014 was signed by only the

Chairperson and two other members of the CCI but the hearing preceding

the same was by other members also. Challenge was made also to Section

27(b) of the Competition Act on the ground of the powers conferred

thereunder being unguided and amounting to excessive delegation. We, vide

detailed order of that date i.e. 30th September, 2014, while posting the said

two petitions for hearing made the earlier interim order absolute till the

decision of those petitions. While doing so, we also considered the

availability of the alternative remedy of appeal to the CompAT but

expressed a prima facie opinion that if the petitioners were to succeed in the

challenge in the writ petitions to the vires of certain provisions of the Act

and which challenge could not be made before CompAT, the order dated

25th August, 2014 would not be sustainable and it would not be appropriate

that this Court as well as CompAT be vexed with the question of validity of

the order dated 25th August, 2014.

W.P.(C) 7186/2014 page 4 of 11

6. Thereafter as aforesaid the hearing began. Thereafter other petitions

along with applications for interim relief were filed but no interim relief

granted therein. However during the hearing on 31st October, 2014,

considering the fact that the order impugned in the other petitions was the

same as the order impugned in W.P.(C) No.6610/2014 and W.P.(C)

No.6634/2014, we extended the interim order in W.P.(C) No.6610/2014 and

W.P.(C) No.6634/2014 to the other writ petitions also in the batch, save this

petition. Though the counsel for the petitioner herein was present on 31st

October, 2014, but on that date also did not press the application for interim

relief and has now filed this application.

7. The star argument of the senior counsel for the petitioner is that the

challenge by this petitioner also is to the same provisions of the Act and the

Regulations which are under challenge in the other petitions in the batch and

thus not granting the same interim order to this petitioner would amount to

discriminating this petitioner vis-a-vis the other petitioners in the batch. We

may notice that the aforesaid argument has been made inpiste of the learned

ASG appearing for the CCI having at the very outset stated that since the

hearing is underway, the respondent no.2 CCI will not take any precipitative

W.P.(C) 7186/2014 page 5 of 11 action against the petitioner also. It is further stated that the petitioner may

file the undertaking for filing whereof tomorrow is stated to be the last date,

without prejudice to the rights and contentions in this petition and / or

subject to the outcome of this petition.

8. However the same is not acceptable to the petitioner. Though we put

to the senior counsel for the petitioner that since the learned ASG has

already made the statement aforesaid, it is for the petitioner to take a call to

file the undertaking as suggested or to in the event of dismissal of the writ

petition face the consequences of having not filed the undertaking within the

time granted therefor, but the senior counsel for the petitioner chose to press

this application.

9. We are however not inclined to grant any interim order as sought, for

the following reasons:-

(a) Today and in fact even at the time when the present writ

petition came up first, CompAT was/is functioning and the

appeal if preferred by the petitioner to CompAT would have

been taken up for hearing along with the application for interim

relief which would have been filed therewith. Thus this petition

W.P.(C) 7186/2014 page 6 of 11 cannot be compared with other petitions in the batch, interim

relief wherein came to be granted in the circumstances

aforesaid.

(b) If the same interim order were to be extended to this petition as

well as all other petitions which may also be filed impugning

the provisions of the Competition Act and the Regulations

thereunder, the same would lead to none approaching CompAT,

thereby making CompAT non-functional.

(c) We, in these petitions, are not concerned with the challenge

even if made to the merits of the order of the CCI as indeed we

cannot be and had clarified so at the initial hearing only. In the

hearing till now also, none of the counsels has made arguments

on the merits of the order of the CCI. The hearing in these

petitions is confined to the challenge to certain provisions of the

Act and the Regulations thereunder and to the query raised by

us in the order dated 30th September, 2014 supra. We do not see

any reason for multiplying the petitions. If the said challenge is

to succeed, the judgment would bind all those covered thereby.

W.P.(C) 7186/2014 page 7 of 11 Thus merely on the ground of having made the same challenge,

the persons aggrieved from the orders of the CCI cannot avoid

approaching CompAT which as aforesaid is now functional or

from seeking the interim relief from CompAT.

(d) The contention of the petitioner of discrimination by the Court

is misconceived. A judgment / order of the Court can never be

challenged under Article 14 of the Constitution of India. What

is applicable to the Courts is the principle of binding precedent,

which also is not applicable in the matter of interlocutory

orders. We are however mindful of the need for consistency of

approach and uniformity in the exercise of judicial discretion

respecting similar cases and the desirability to eliminate

occasions for grievances of dissimilar treatment.

(e) However, what may be good in one particular case, may not

remain good when the Court realizes that replicating the same

in all cases may make another statutory fora non-functional,

particularly when there is no challenge to the constitution or the

powers of that fora. Public interest has now been universally

W.P.(C) 7186/2014 page 8 of 11 recognized as the fourth ingredient on the anvil whereof the

grant / non grant of interim relief is to be tested. We are of the

considered opinion that public interest is not in favour of so

making CompAT non functional.

(f) The Supreme Court in Rural Litigation & Entitlement Kendra

Vs. State of U.P. 1989 Supp.(1) SCC 504, while dealing with

the demand of similar treatment to all „A‟ category mine

owners held that there can be no two opinions about the Court

extending equal treatment to all equally placed petitioners

before it. The Court, though at a later stage in the

proceedings did not find tenable the distinction between the „A‟

category mines located within and outside the municipal

limits and on the basis of which distinction orders entailing

different treatment had been made earlier, nevertheless held

that "there are certain situations where in the interest of

general benefit to the community, interest of individual

citizens may be overlooked" and, refused to allow the

„A‟ category mines within the municipal limits to operate

as those outside the municipal limits had been allowed

to and further held that "even if some of the mine owners are W.P.(C) 7186/2014 page 9 of 11 worse affected than some others, permission to reopen the

mines" cannot be granted "with a view to compensating them

for being placed at par with the less affected group." We may

add, that the Court can always say that it is „wiser‟.

(g) Rather we find the stand taken by the petitioner to be unfair.

The petitioner, if has faith in the challenge made by it in the

writ petition and if notwithstanding the statement aforesaid by

the learned ASG on behalf of CCI, not desirous of filing the

undertaking as directed by the order of the CCI, should be

willing to suffer the consequences thereof.

(h) The petitioner even in the writ petition has pleaded (as

demonstrated by the counsel for the respondent no.3 HT Media

Ltd. at whose information the proceedings against the petitioner

were initiated in the CCI) that this petition is without prejudice

to its rights to pursue W.P.(C) No.2037/2013 pending before

the learned Single Judge and to its right to prefer and appeal

against the order dated 1st October, 2014 to CompAT. The

petitioner now wants to change the stand and piggy ride on the

interim order in the other petitions.

W.P.(C) 7186/2014                                                       page 10 of 11
        (i)     The proceedings against the petitioner before the CCI are

pending since the year 2010 to 2011 and the challenge earlier

made by the petitioner by W.P.(C) No.1119/2012 to the

jurisdiction of the CCI did not find favour and the petitioner

was denied interim relief even in W.P.(C) No.2037/2013 supra.

(j) The petitioner thus, cannot be said to be similarly situated as

the petitioners in writ petitions where interim relief has been

granted.

10. This application as well as CM No.16889/2014 are thus dismissed;

however CCI shall remain bound by the statement supra.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J.

NOVEMBER 10, 2014
„pp‟

W.P.(C) 7186/2014                                              page 11 of 11