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TMI Blog2021 (11) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the impugned order dated 20.01.2021 in Case No.50 of 2020 (filed by the Appellant/ Informant under Section 4 of the Competition Act, 2002 at paragraph 4 to 6, 10 to 14 had observed the following: 4. "The informant states that he learnt about Clause 28 of Schedule III, Rule 11 to Part IV - Rules of Legal Education, 2008, a part of Bar Council of India Rules enacted under the Advocates Act, 1961 (hereinafter, 'Clause 28'), according to which the candidates belongings to General category who have attained the age of more than 30 years, are barred from pursuing legal education. The BCI has allegedly imposed maximum age restriction upon the new entrants to enter into the legal education and thus, created indirect barriers to the new entrants in the profession of legal service. The impugned Clause 28 has been incorporated by the BIC in contravention of Section 4 of the Act by 'misusing its dominant position'. By having done so, the BCI has also allegedly indulged in colourable exercise of power. 5. The Informant has further alleged that the members of the BIC, by way of aforementioned Clause 28, conspired to reduce the competition to its electors and created indirect barriers in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n had the occasion to examine the status of IRDAI as an 'enterprise' under the Act. The Commission had observed that any entity can qualify within the definition of the term 'enterprise' if it is engaged in any activity which is relatable to the economic and commercial activities specified therein. It was further observed that regulatory functions discharged by a body are not per se amenable to the jurisdiction of the Commission. 14. In the present matter, when the BCI appears to be discharging its regulatory functions, it cannot be said to be an 'enterprise' within the meaning of Section 2(h) of the Act and consequently, the allegation made in relation to discharge of such functions which appears to be non-economic in nature, may not merit an examination within the provisions of Section 4 of the Act." and finally was of the opinion that there existed no prima facie case under the provisions of Section 4 of the Act and directed the information filed to be closed forthwith against the Opposite Parties under Section 26(2) of the Act and rejected the reliefs as prayed for under Section 33 of the Act and rejected the same 3. Challenging the impugned order dated 20.01.2021 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraph 13 had equated the Second Respondent/ 'Bar Council of India' with IRDAI. 8. The Learned Counsel for the Appellant submits that as per the Advocates Act, 1961 as well as from the conduct of the Second Respondent/ 'Bar Council of India', it is an elected body of the 'Advocates'. Therefore, it is a person as per sub-section 2(I)(v) of the Act as well as under sub-section 2(I) (x) of the Act. 9. The Learned Counsel for the Appellant points out that as per Section 5 of the Advocates Act, 1961, the 'Bar Council' is a 'Body Corporate'. Evaluation 10. At the outset, this Tribunal points out that the Appellant/ Informant before the First Respondent/ Competition Commission of India in Form 1 at Serial number 8 to 11, 14 and 15 had averred as under: 8 "Introduction/brief of the facts giving rise to filing of the information 1.Thupli Raveendra Babu (aged 52 years), the informant presently working as an Executive Engineer in CPWD under the ministry of Urban Development, Govt. of India. Since my childhood, I was having a dream of pursuing legal education. Due to financial constraints of my parents, I could not pursue legal education as I dreamt of. After twenty-nine years of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing maximum age restrictions to enter into the legal education. These rules were first notified in March, 2009. This action of the Bar Council of India is in violation of the Section 4 of the Competition Act, 2002 of India. (The detailed facts and the locus standi of the applicant are submitted in the Annexure-II attached herewith). 14. Any other related fact in connection with the filing of information The Bar Council of India is an elected body of the advocates. The members of the Bar Council of India have conspired to reduce the competition to its electors by creating these indirect entry barriers into the profession of legal service. The Bar Council of India has indulged in the colourable exercise of power. 15. Interim relief sought for under Section 33 of the Competition Act, 2002, if any (For this purpose the informant shall explain that Interim relief sought to suspend immediately the Clause No. 28 of the Rules of Legal Education, 2008 of the Bar Council of India. (i)What irreparable loss is caused / likely to be caused to the informant; and If these rules are in force without any restraint, the applicant Thupli Raveendra Babu (aged 52 years) the state firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erprise', it failed to give due weightage to the words 'relating to the production, storage, supply, distribution, acquisition or control of any articles or goods appearing in Section 2(h) and was swayed by the fact that the Registrar had issued the disputed circulars in exercise of its statutory powers. In my view, even though the Registrar, Cooperative Societies, Punjab had issued circulars in the purported exercise of his powers under the Punjab Cooperative Societies Act 1961 and the Rules and Regulations framed thereunder, the fact remains that the same were definitely relating to the goods which could be purchased by Primarily Agricultural Societies from Respondent No. 6 only. Therefore, the Registrar would fall with the ambit of term 'enterprise as defined in Section 2(h) for the purpose of the Act and will be amenable to the jurisdiction of the Commission." (iii) In the matter of Rajat Verma vs. Haryana Public Works (B&R) Department and Others (vide Appeal No.45 of 2015 vide order dated 16.02.2016, the Competition Appellate Tribunal at paragraph 14 and 23 had observed as under: "14. As is evident from the preamble, the main object of the new legislation was to provide for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being performed by DGHS cannot be covered in the definition of enterprise because it is not directly engaged in any economic and commercial activities. Its role is limited to control and regulation of the healthcare system in the country.... We, therefore, find that the Commission has taken a simplistic view of the activities of a Government department and has erred in appreciation of the scope of the definition of enterprise." II(vi) In the matter of Arun Anandagiri vs. The Institute of Chartered Accountants of India (OP) (Case No.93/2013) vide the order dated 28.02.2014, the Competition Commission of India at paragraphs 3 and 5 had observed the following: "3. OP‟s primary function is to regulate the profession of Chartered Accountants ("CAs") in India and for this the CA Act empowers OP to approve academic courses, conduct examination of candidates for enrolment, prescribe qualifications, prescription on levy of fees,... 5. The first question which falls for consideration before the Commission is that whether OP is an 'enterprise' within the meaning of Section 2(h) of the Act, and if it is so, whether it is rendering 'service' of any description in terms of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraph 75). Provided that that condition is satisfied, the fact that an activity has a connection with sport does not hinder the application of the rules of the Treaty (Case 36/74 Walrave and Koch [1974] ECR 1405, paragraph 4, and Case C-415/93 Bosman [1995] ECR I-4921, paragraph 73) including those governing competition law (see, to that effect, Case C-519/04 P Meca-Medina and Majcen v Commission [2006] ECR I-6991, paragraphs 22 and 28)..."[Source C-49/07, REFERENCE ibid.) Thus, it is conclusive that all Sports Associations are to be regarded as an enterprise in so far as their entrepreneurial conduct is concerned and treated at par with other business establishments. 8.29 In India also in a recent decision, Delhi High Court held All India Chess Federation (which performs similar functions as BCCI for the game of Chess) to be an enterprise for the purpose of the Act. (Source: Hemant Sharma & Others Vs Union of India, Delhi High Court, WP(C) 5770/2011, date of decision 04/11/2011). 8.30 In line with the provisions of the Act, international jurisprudence, and Delhi High Court decision in case of Ches ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing indirect entry barriers into the profession of legal service; (ii) That the Second Respondent/ 'Bar Council of India' is misusing its dominant position in controlling the legal education in India through Clause 28 of the Rules of Legal Education, 2008 and as such, the action of the Second Respondent/ 'Bar Council of India' is in breach of Section 4 'Abuse of dominant position' of the Competition Act, 2002. 13. In the aforesaid background, the Appellant before the First Respondent/ Competition Commission of India had sought the relief of declaration that Clause 28 of the Rules of Legal Education, 2008 of the Second Respondent/ 'Bar Council of India' has an illegal and void ab initio one. Further, the Appellant prayed for imposition of maximum possible penalty on the Second Respondent/ 'Bar Council of India' for willful contravention of Section 4 of the Competition Act, 2002. 14. In the instant case, before this 'Tribunal' the seminal point that arises for rumination is whether the Second Respondent/ 'Bar Council of India' comes within the ambit of 'enterprise' as per Section 2(h) of the Competition Act, 2002. 15. In this connection, it is worthwhile for this Tribunal to adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for admission to a course of degree in law in any recognised University; (ag) the class or category of persons entitled to be enrolled as advocates; (ah) the conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a court; (d) the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose; (i) general principles for guidance of State Bar Councils and the manner in which directions issued or orders made by the Bar Council of India may be enforced;" (j) any other matter which may be prescribed: 18. Undoubtedly, the definition of 'enterprise' is very wide and the definition does not only cover those institutions connected with activities pertaining to goods but also covers activities relating to provisions of 'services' of any kind, which gives a very broad connotation to the range of activities that can be covered in the definition of the 'services'. 19. In order that any entity to come within the meaning of 'enterprise' as per Section 2(h) of the Competition Act, 2002 that it is or has been engaged in a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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