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TMI Blog2024 (10) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... diture, Ministry of Finance, Government of India, cannot be considered or regarded as an enterprise in terms of Section 2(h) of the Act, 2002 in relation to the Office Memorandum dated 24.03.2006. Thus, it is very well proved that the Appellant has approached the Respondent No. 1 by filing second information on the same facts and circumstances against the same opposite parties with the same prayer which has already been declined in the first information filed by the Appellant and the order of the CCI was tested and upheld by the Appellate Authority when the appeal of the Appellant was dismissed and no further appeal by the Appellant was carried to the Hon ble Supreme Court which seal the fate of the Appellant in so far as this litigation is concerned. In this view of the matter the salutary principle / legal maxim that nemo debet lis vexari pro una et eadem causa would spring in to the action that no man should be vexed twice for the same cause which has been adjudicated in the present case by the Appellant because even if it is presumed that the economic activities are dynamic, as stated by the Appellant, the fact remains that the two courts have already held that the Respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urism business. 4. The case set up by the Appellant is that the exclusionary market conduct of Respondent No. 2 is prevailing from the last 14 years and has restricted the market access for travel agent services for booking air tickets in India and has adversely impacted benefits of fair competition which would have resulted in lower prices and better services to the end consumers. 5. It is alleged that Respondent No. 2 had issued an office Memorandum bearing No. 19024/1/E.IV/2005 on 24.03.2006 titled Guidelines on Air Travel on Official Tours- Purchase of Air Ticket From Authorised Agents . The Office Memorandum (hereinafter referred to as the OM1 ) contained direction to all government officials including the employees of the public sector companies to exclusively utilise the services of either Respondent No. 3 or Respondent No. 4 while booking air tickets for official travel and in this manner, foreclosed a substantial portion of the market to the private sector travel agents. 6. The Appellant has further alleged that it had approached earlier by way of an information which was assigned case no. 39 of 2010 to challenge OM1 but the Respondent No. 1 vide its order dated 15.09.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 3, it is alleged that the second information on which the impugned order has been passed is not maintainable and the Appellant has not come to the Court with clean hands and is guilty of abusing the process of law because the Appellant is trying to reagitate an issue which has already been adjudicated upon and issue involved is no more res integra. 12. It is alleged that OM1 which is subject matter of the second information from which the present appeal has arisen was also subject matter of the first information as it was challenged by the same Appellant before the CCI bearing case No. 39 of 2010 raising identical issues which was closed by a detailed order dated on 15.09.2010 under Section 26(2) of the Act. 13. It is further alleged that the Appellant has challenged the order dated 15.09.2010 by way of an appeal no. 21 of 2010 before the Competition Appellate Tribunal but vide order dated 26.09.2012 the appeal was dismissed and it was held that OM1 do not contravene any of the provisions, more particularly Section 3 and 4 of the Act. It is also submitted that the order of the Appellate Authority dated 26.09.2012 was not further challenged by the present appellant before the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate travel agents in the market for air tickets booking by the government employees and whether the department of expenditure, ministry of finance, government of India is an enterprise within the meaning under Section 2(h) of the Act . It is alleged that these issues were directly and substantially in issue between the same parties i.e present Appellant, Union of India represented through the Department of Expenditure, Ministry of Finance, Balmer Lawrie and Co. Ltd. and Ashok Travels Tours Ltd. which have been comprehensively decided by the CCI vide its order dated 15.09.2010 and appeal filed by the Appellant against the said order was dismissed on 26.09.2012 which attained finality because no further appeal was filed. 16. Counsel for the Respondent has also alleged that by filing of the second information, the Appellant is seeking a review of the earlier order dated 15.09.2010 and 26.09.2012 which had been passed in the first information filed by the Appellant which is not permissible in law. 17. Counsel for the Respondent has thus submitted that second information filed by the Appellant and the present appeal is nothing else but an abuse of process of court and therefore, not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the CCI last assessed competition in the relevant market. Therefore, the Commission s observation that TAAI had earlier filed a case against Balmer Lawrie and Ashok Travels being case No. 39 of 2010 raising similar issues is untenable under the law. 20. He has also submitted that in case no. 73 of 2014 Amit Mittal Vs. DLF Ltd. it has been observed that in competition law cases period of assessment is crucial since markets by their very nature are dynamic and keep changing with time. 21. On the other hand, Counsel for the Respondents have argued that the Appellant has no legal right to file second information on the same cause of action as it has challenged OM1 and the subsequent OMs are only clarificatory in nature. OM1 has already been upheld not only by the Hon ble Delhi High Court but also challenge to OM1 made by the Appellant by way of first information has been rejected when the CCI had closed the matter by its order dated 15.09.2010 and appeal filed to this order dismissed by the Appellate Authority. It is therefore submitted that it is a case which is squarely covered by the principles of res judicata as enshrined under Section 11 of the Code of Civil Procedure, 1908 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods [or services] are sold or from whom goods 6 [or services] are bought; (e) resale price maintenance [includes, in case of any agreement to sell goods or provide services, any direct or indirect restriction] that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged. 24. A bare reading of Section 3(1) says that to invoke this provision the entity has to be an enterprise. Enterprise is defined in Section 2(h) which read as under:- (h) enterprise means 1[a person or a department of the Government, including units, divisions, subsidiaries, who or which is, or has been, engaged in any economic 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 divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer i.e. Government of India is doing nothing but ensuring benefit to itself. 9.3 It is evident from the record that the informant has made allegations against the Government of India but it has not been made a party in the present matter. Otherwise also, the Department of Expenditure, Ministry of Finance, Government of India cannot be said to be engaged in any activity which relates to production, storage, supply, distribution, acquisition or control of article of goods or provision of services. Therefore, the Government of India is not covered under the definition of enterprise provided in section 2(h) of the Act. The impugned O.M. issued to governed the official travels of its employees cannot be termed as an activity which can have any bearing on competition in the relevant sector. Moreover, the Government of India is the consumer in the present case, availing the services of the opposite parties in the procurement of air tickets for its employees for official domestic visits. 9.4 There is no case of horizontal agreement/restraint under Section 3(3). OM issued by the Department of Expenditure, Ministry of Finance, Government of India cannot be treated as an agreement on horizon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable and the application of the informant under section 33 is disposed of accordingly. 27. The Appellate Authority dismissed the appeal of the Appellant on 26.09.2012 making the following observations:- 10. We have perused the order passed by the CCI which is impugned herein. It is obvious from that order that the CCI has considered the Office Memorandum dated 24.3.2006 in detail. When clauses (i) to (viii) in paragraph 3 of the Office Memorandum are considered individually as well as collectively, it is clear that the objective of the Government of India (Respondent No. 4) was to secure competitive prices for the air travel undertaken by the their officers. Clauses(i),(ii), （iii), (iv) and (v) very specifically bring out the intention of the Government to save he costs. Clauses (vi) and (vii) speak about the convenience in securing the air tickets. It is only clause No.（viii) which seems to have irked the complainant. The clause runs as under :- Whenever the officer seeks to utilize the service of travel agents, it should be limited to M/s. Balmer Lawrie Company and M/s. Ashok Travels and Tours. The above agencies would also ensure that procurement of tickets is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the consumer. If we have a glance at the definition of the person ，it suggests that a local authority or an artificial juridical person also can be included in the term person 。 If that is so, there is no reason why the Government should be excluded from being a person. 14........Because of this peculiar language, the appellant has to say that the consumer must be a person. Even if we agree with that argument, we see nothing which can stop the Government from being a consumer. The CCI is also correct in holding that there is no vertical agreement between the Government of India and Respondent Nos. 1 and 2, we endorse that finding. 15. The learned counsel for the appellant also tried to say that Government of India was abusing its dominant position in the market. Once we hold that Government of India itself is a consumer, it cannot be said to be a dominant enterprise in the relevant market. The CCl is right in holding that the Government is a consumer in the relevant market for procuring the air tickets for domestic air travel. The Government in its role as a consumer has sought the services of Respondent Nos. 1 and 2, there is no question of its dominance merely bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the following manner which read as under:- 15. The Commission notes that the information filed in this case does not have any allegations of abuse of dominance (Section 4) and pertains to alleged violation of Section 3(4) and Section 3(1) of the Act. Even otherwise for the reasons mentioned in subsequent paragraphs of this order, a case under Section 4 (abuse of dominance) of the Act would not be made out against DOE, Balmer Lawrie and Ashok Travels and therefore the Commission does not deem it fit to grant further time as sought by TAAI. 16. The Commission notes that analysis of allegations of TAAI require determination of the issues, namely, a) Whether DOE is an enterprise , within the meaning of Section 2(h) of the Act?; b) whether the agreement executed between DOE, Balmer Lawrie and Ashok Travels is in contravention of provisions of Section 3(4) of the Act read with Section 3(1) of the Act?; and c) whether the agreement executed between DOE, Balmer Lawrie and Ashok Travels is covered under Section 3(1) of the Act?. 17. The Commission notes that TAAI had earlier filed a case against Balmer Lawrie and Ashok Travels, being Case No. 39 of 2010 raising same issues. In the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f public services, reviewing system and procedure to optimize outputs and outcomes of public expenditure. The principal activities of the Department include overseeing the expenditure management in the central Ministries/ Departments through the interface with the Financial Advisers and the administration of the Financial Rules/ Regulations/ Orders, pre-sanction appraisal of major schemes/ projects, handling bulk of the central budgetary resources transferred to State. The business allocated to the Department of Expenditure is carried out through its Personnel Establishment Division, Public Finance (States) and Public Finance (Central) Divisions, Office of Controller General of Accounts, Office of Chief Adviser Cost, and Central Pension Accounting Office. 27. Upon perusal of the activities performed by DOE, it appears that DOE oversees the public financial management system in the Central Government and matters connected with state finances and is responsible for the implementation of the recommendations of the Finance Commission and Central Pay Commission. The Commission observes that DOE s principal activities appear to be in realm of policy making and interface with various mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the Department of Expenditure, Ministry of Finance, Government of India, cannot be considered or regarded as an enterprise in terms of Section 2(h) of the Act, 2002 in relation to the Office Memorandum dated 24.03.2006. 30. The CCI has also held that there is no vertical agreement between the Respondent No. 2, 3 and 4 under Section 3(4) of the Act, 2002 and thus there is no case of contravention of said provisions of the Act, 2002. It is also held by the Hon ble Supreme Court in Pharmaceuticals Ltd. Ors. Vs. Punjab Drugs Manufactures Association Ors. in regard to the validity of the policy decision of the Government regarding purchase of medicines for usages in Govt. hospitals and dispensaries only from public sector manufacturers that:- 2. Before the High Court of Punjab Haryana in civil Writ Petition No.6144/87, the petitioners challenged the constitutional validity of the policy decisions of the Government of Punjab whereby directions were issued to the purchasing authorities that certain medicines used in the Government hospitals and dispensaries were to be purchased from public sector manufacturers only. The High Court was pleased to allow the petition and quashed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njab (1955 2 SCR 225) while dealing with similar restrictions imposed by the State on the purchase of text books held that a publisher did not have the right to insist on any of their books being accepted as text books. This Court held : So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the Government. Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them. A trader might be lucky in securing a particular market for his goods but he loses that field because the particular customers for some reason or other do not choose to buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers for ever. Further, while negativing the contention of the petitioners in that case based on Article 19(1)(g) of the Constitution, the Court came to the conclusion that the question whether the Government could establish a monopoly without any legislation under Article 19(1)(6) of the Constitution is altogether immaterial. ......... 16. It is clear from the various judgments referred to above that a decision which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by the Appellate Authority when the appeal of the Appellant was dismissed and no further appeal by the Appellant was carried to the Hon ble Supreme Court which seal the fate of the Appellant in so far as this litigation is concerned. 33. In this view of the matter the salutary principle / legal maxim that nemo debet lis vexari pro una et eadem causa would spring in to the action that no man should be vexed twice for the same cause which has been adjudicated in the present case by the Appellant because even if it is presumed that the economic activities are dynamic, as stated by the Appellant, the fact remains that the two courts have already held that the Respondent No. 2 is not an enterprise and OM1 is not an agreement inviolation of Section 3(4) of the Act, therefore, these issues cannot be reagitated and the court cannot be called upon to decide the same by passing a lengthy judgment and the wasting time which may be used for disposal of a genuine case, therefore, the present appeal is found without any merit and while dismissing this appeal, the Appellant is saddled with costs of Rs. 5 lacs which shall be deposited by the Appellant in the Prime Minister Relief Fund within a ..... 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