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TMI Blog2024 (9) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... n supplied only on 01.03.2024, the petitioner was unaware that the furnishing of order dated 01.11.2019 was on account of the upgradation of its status. Thus, the participation of the petitioner in the proceedings does not either militate against the present challenges or amount to acquiescence thereof. Importantly, a photostat copy of order dated 26.08.2020 has been supplied to the petitioner only 01.03.2024 and the present writ petitions have been filed on 07.03.24. There is thus no delay in the petitioner approaching this Court. Whether the change of status of the petitioner from participant to party / opposite party in the reference is material and whether it is contrary to the provisions of law and the procedure contemplated under the Act and connected Regulations? - HELD THAT:- An entity is entitled to know the status under which its presence and participation is sought in statutory proceedings. The application of the statutory provisions and connected Regulations, their consequences, as well as available protections would vary depending on the status of the party. Thus, unless a party is aware as to the specific provision under which its involvement is sought and obtained, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el For M/s.King Patridge For the Respondents: Mr. N.Venkatraman Additional Solicitor General assisted by Mr.R.Thirunavukkarasu Central Government Standing Counsel-R1 to R5 No appearance R6 COMMON ORDER In these three Writ Petitions, the petitioner challenges orders dated 01.11.2019 (in short, first order/order No.1), 26.08.2020 (in short, second order/order No.2) and notice dated 02.02.2024. Consent of the parties, including specifically of respondent counsel, has been sought and obtained, for final disposal of the matter at this stage. 2. The genesis of the matter is a reference that had been made by the Directorate of State Transport, Haryana/R6 under Section 19(1)(b) of the Competition Act, 2002 (in short Act ) as against JK Tyres Industries Limited (in short JK Tyres ). An order came to be passed on 01.11.2019 by the Competition Commission of India (in short R1) directing investigation to be made into the matter and for submission of an investigation report within a period of 60 days from date of receipt of that order. 3. It is notable that only JK Tyres was arrayed as opposite party in that reference. The reference was made based on the following factual pattern. R6 had invite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enders of State Transport Undertakings from the year 2014 till March, 2019. The petitioner responded on 18.06.2020 seeking some time to cull out the particulars, as the world was under the grip of the covid-19 pandemic. On 20.07.2020, the material was collected and sent. 9. This was followed by another notice dated 14.08.2020 under Section 41(2) read with Section 36(2) of the Act seeking e-mail dump for the e-mail ids of two persons, V.Gautam and Narayanan, for the period 01.01.2015 to 31.12.2019. 10. Vide communication dated 21.08.2020 sent in reply to notice under Section 41(2), the petitioner has emphasised its status as a third party. The petitioner states specifically that a request had been made seeking a copy of order dated 01.11.2019 which had been rejected by the authority on the ground that the petitioner was not entitled to the same as it its status in the proceedings was only as a third party. This has not been denied either in subsequent communications from the respondents or before me. 11. The authority has itself drawn a categoric distinction between a party to the proceedings and a mere participant, being a third party and this distinction thus, assumes relevance. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberty to investigate the role of other tyre manufacturers as well, which indicates that the scope and ambit of the investigation stood expanded, as a conscious move. Accordingly, the other tyre manufacturers stood impleaded as opposite parties 2 to 8 respectively. 15. The petitioner has advanced several arguments on the challenges laid. However, the main argument turns on the change in status from a participant in the investigation as against JK Tyres to an opposite party in the reference made by R6 without any opportunity granted to it in that respect. 16. Heard the detailed submissions of Mr. AL.Somayaji, learned Senior Counsel appearing for M/s.King Patridge, learned counsel on record for the petitioner and Mr. N.Venkatraman, learned Additional Solicitor General, assisted by Mr. R.Thirunavukkarasu, learned Central Government Standing Counsel for R1 to R5. No notice has been issued to R6. 17. The first issue that arises for consideration is as to whether the challenge to orders dated 01.11.2019 and 26.08.2020 are belated and whether the Writ Petitions suffer from laches. 18. I am of the view that there is no delay in filing of these Writ Petitions, since one of the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 26.08.2020 was not even served and a copy was supplied only on 01.03.2024. Clearly, the proceedings lack transparency. 24. In my considered view, an entity is entitled to know the status under which its presence and participation is sought in statutory proceedings. The application of the statutory provisions and connected Regulations, their consequences, as well as available protections would vary depending on the status of the party. Thus, unless a party is aware as to the specific provision under which its involvement is sought and obtained, it would be in the dark as to the measures available to it under the law. 25. Section 2 of the Act defines various terms. When notified on 31.03.2003, there was no definition for the term party , despite the term finding place in Sections 4, 5 and 26 dealing with abuse of dominant position , combination and procedure for inquiry . 26. The Competition Commission of India (General) Regulations, 2009 (in short General Regulations ), notified on 21.05.2009 define the term party as including a consumer or an enterprise or a person defined in clauses (f), (h) and (l) of section 2 of the Act respectively, or an information provider, or a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 (3) Orders of Commission on combinations 31 (4) 31 (5) 31 (6) twice 31 (7) 31 (8) twice 31 (9) 31 (12) twice 31 (13) 53B (3) 53B (4) Appeal to Appellate Tribunal 64 (2) (fc) Power to make regulations 30. The respondents have cited three cases in the context of impleadment i) Excel Crop Care Ltd. V. Competition Commission of India 1(2017) 8 SCC 47, ii) Cadila Health Care Ltd. and others V. CCI and others 2255 2018 DLT 647 and iii) Competition Commission of India V. Grasim Industries 3265 2019 DLT 535. The judgements are prior to the amendment in 2023 inserting a specific definition for the word party . That apart, the impact that such upgradation has on a party must also be considered. 31. There are serious consequences to an order passed by the Commission under Section 27 of the Act whereunder it may direct any enterprise found guilty of abuse of dominant position, to discontinue from, and not re-enter such agreement. It may also impose penalties as it may deem fit, upto 10% of the average turnover or income for the last three preceding financial years when the entity is found to have abused its dominant position. 32. There are several provisions in the Act that use the term par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he DG s report further investigation is required, the Commission may direct him to cause such further investigation. 39. In the present case, a report dated 17.08.2020 has been furnished by the DG which has not been furnished to the petitioner. Sub-section (4) provides for the Commission to forward a copy of the report referred to in sub-section (3) and (3B) to the parties concerned. The term used in Section 26(4) is parties . Since a copy of the report u/s 26(3) has not been furnished to the petitioner, it is clear that it is still being treated on par with a third party to the proceedings. This is despite the updation in status exparte to contesting party, under order dated 26.08.2020 furnished to the petitioner in 2024. 40. Neither Section 41 nor Section 26(4) elaborate on the procedure to be followed when a third party is escalated to the position of contesting/opposite party. However it is clear that this escalation is triggered by virtue of the reports of the DG under Section (3) and (3B). 41. If the reports under Section (3) and (3B) contain recommendations that there is no contravention of the statutory provision, the Commission, under sub-section(5), shall invite objection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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