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TMI Blog2017 (9) TMI 1636X X X X Extracts X X X X X X X X Extracts X X X X ..... uded from the ambit of Section 2(h) of the Act - distribution of liquor cannot by stretch be considered as one of the activities falling within the above exclusionary provision - the contention that the petitioners are not enterprises within the meaning of Section 2(h) of the Act is unmerited and is rejected as such. Merely because multiple remedies arise from a set of facts or multiple consequences arise from the same set of facts does not prevent recourse to more than one proceedings. Unless the proceedings are mutually destructive - which in this case they are not - recourse to multiple proceedings on the same set of facts is not barred. Petition dismissed - decided against petitioner. - W.P. (C) 10411/2016, CM Nos. 40871/2016, 17613/2017 & 32079/2017 - - - Dated:- 22-9-2017 - Vibhu Bakhru, J. For Appellant: Virendra Rawat, Advocate For Respondents: Zoheb Hossain, Advocate ORDER Vibhu Bakhru, 1. The petitioner no. 1 is a body corporate which is entrusted with the functioning of developing and regulating 'Mandies' in the State of Uttrakhand. Petitioner nos. 2 3 are companies wholly owned by the Government of Uttrakhand and are, inter al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid controversy are as under:- 5.1 The State Government of Uttrakhand, by a notification dated 27.04.2015, notified the Liquor Wholesale Order containing its policy for procurement and distribution of liquor in the State of Uttrakhand. In terms of the said policy, petitioner no. 1 was made the wholesale licensee of foreign liquor including IMFL and petitioner nos. 2 and 3 were sub-licensees for the districts falling within their respective regions (seven districts in Garhwal region and six districts in Kumaon region). 5.2 The Liquor Wholesale Order dated 27.04.2015 was challenged before the High Court of Uttrakhand in multiple petitions filed under Article 226 of the Constitution of India, inter alia, on the ground that it was outside the scope of the relevant statutes. The said petitions were disposed of by the Division Bench of the Uttrakhand High Court by a common judgment dated 06.08.2016 rendered in Gurvinder Singh Chadha v. Chief Secretary, State of Uttrakhand and others : W.P. (PIL) No. 73/2015 and other connected matters; the high court rejected the challenge laid by the petitioners therein and upheld the Liquor Wholesale Order dated 27.04.2015. The Special Leav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing orders. The petitioners claim that thereafter, the petitioners have been diligently following the order dated 23.12.2015, passed by the High Court of Uttarakhand and the directions issued in the Excise Department in the notice dated 31.12.2016. 5.7 On 07.01.2016, respondent no. 2 filed an information under Section 19(1) (a) of the Act alleging that the petitioners were violating the provisions of Section 4 of the Act by not procuring, supplying and distributing IMFL in accordance with consumer demand. 5.8 The CCI acknowledged the receipt of the aforesaid information and issued a notice to the petitioner fixing a preliminary hearing on 07.04.2016. Subsequently, by an order dated 23.03.2016, the preliminary hearing scheduled on 07.04.2016 was deferred to 28.04.2016. The petitioner alleges that although their Advocate had filed a vakalatnama on 18.04.2016 before the CCI, but the change in the date of holding the preliminary conference to 28.04.2016 or the subsequent proceedings were not received by the petitioners. 5.9 The CCI after examining the information, passed the impugned order on 19.07.2016. Thereafter, the petitioners filed an application dated 16.08.2016 under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught in the two proceedings were entirely different. Reasoning and Conclusion 10. The first and foremost question to be addressed is whether the petitioners are excluded from the scope of the term 'enterprise' as defined under Section 2(h) of the Act. Section 2(h) of the Act is set out below:- 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch enterprise to be outside the ambit of industry as also in State of Bombay and Ors. case 13. In Union of India v. Competition Commission of India Ors.: 187 (2012) DLT 697, a Coordinate Bench of this Court had considered a similar issue raised by the Indian Railways. In that case, the CCI had rejected the contention of Ministry of Railways that it was not an enterprise within the meaning of Section 2(h) of the Act and had entertained complaint under Section 19(1) of the Act. Union of India through Ministry of Railways had assailed the order passed and challenged the decision of the CCI holding the Indian Railways to be an enterprise within the meaning of Section 2(h) of the Act. Rejecting the challenge of the Union of India, this Court had held as under:- 19. It is not the petitioner's contention that it is not a department of the Government. It is also not the petitioner's contention that it is not engaged in an activity relating to provision of services, inter alia, of transportation of goods by rail road. Therefore, unless the petitioner's aforesaid activity can be classified as relatable to the sovereign functions of the Government including all activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Uttarakhand High Court are not contrary to the facts as asserted by the respondent association. Therefore, even if the respondent association was party to the petition before the Uttarakhand High Court (which it was not) the information provided by it to CCI or the proceedings commenced by the CCI pursuant thereto, are not hit by the principle of issue estoppel. 20. Merely because multiple remedies arise from a set of facts or multiple consequences arise from the same set of facts does not prevent recourse to more than one proceedings. Unless the proceedings are mutually destructive - which in this case they are not - recourse to multiple proceedings on the same set of facts is not barred (See: DCM Shriram Industries v. H.B. Stock Holdings Ltd: 2014 (184) Comp Cases 275). 21. This Court also does not find that the impugned order to be perverse or wholly without jurisdiction and, thus, no interference is warranted in these proceedings. In Steel Authority of India (supra), the Supreme Court had explained that the order passed under Section 26(1) of the Act does not effectively determine the rights and obligations of the party. The Court had also examined the scheme of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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