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TMI Blog2025 (4) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia quashing of the proceedings of Case No. 77 of 2016 with Reference Case No. 4/2016 registered with the Competition Commission of India (herein after referred to as the CCI) and the impugned Order dated 06.12.2016 passed by the CCI under Section 26 (1) of the Competition Act, 2002 (herein after referred to as the said Act, 2002) and the impugned Order dated 08.08.2018 passed by the CCI rejecting the application seeking review/recall of the Order dated 06.12.2016 passed by the CCI on 08.09.2016 and 15.09.2016 respectively filed by the petitioner. 3. Whereas, in WP(C) No. 6342/2018, the writ petitioner company is assailing the impugned Order dated 27.08.2018 passed by the CCI in Case No. 77/2016 with Reference No. 4/2016 imposing a penalty of Rs. 5,00,000/- (Rupees Five Lakhs) under Section 43 of the said Act, 2002 to the petitioner for non-compliance with the direction of the Director General pursuant to the impugned Order dated 06.12.2016, which is the subject matter in WP(C) 6343/2018. 4. Both the writ petitions are taken up together for hearing as the consequential action of the CCI in levying penalty upon the petitioner company for non-compliance of the direction pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of other persons who were in charge of and were responsible for the alleged conduct of the petitioner or with his consent or connivance, the alleged conduct of the petitioner company took place. 9. After almost one year since the aforesaid order was passed, the Joint Director General issued a Notice on 08.12.2017 under Section 36 (2) read with Section 41 (2) of the said Act, 2002, whereby the petitioner company was directed to furnish various information as called for in the said notice. Pertinent that the Order dated 06.12.2016 however was not furnished to the petitioner company, despite the same is said to have been annexed with the said notice. 10. By letter dated 19.12.2017, the petitioner company requested the CCI to provide with additional details and till date the said details are not furnished, the timeline for submission of the requisite information be extended. 11. Thereafter, the petitioner company was served with the impugned Order dated 06.12.2016 passed by the CCI. 12. Accordingly, on 30.05.2018, the petitioner company filed an application for review and recall of the said impugned Order dated 06.12.2016 passed by the CCI. 13. The said application filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection under Section 26 (1) of the said Act, 2002, the CCI must be of the opinion that there exist a prima facie case and any action taken without the fulfillment of the aforesaid pre-condition, shall be totally illegal and void ab initio. 19. He accordingly submits that the impugned Order dated 06.12.2016 and Review Order dated 08.08.2018 are wholly illegal and without jurisdiction and thereby warrants setting aside and quashing thereof. 20. He further submits that the consequent penalty imposed upon the petitioner company as such is unwarranted. 21. Mr. T.J. Mahanta, learned Sr. Counsel for the respondent Nos. 1, 4 and 5 on the other hand submits that the instant writ petition is not maintainable, inasmuch as, the writ petition is pre-mature and the investigation directed by the CCI Authorities is based on a prima facie opinion without involving an adjudicatory process and once the Director General submits the final report, the same can be appealed before the National Company Law Appellate Tribunal under Section 53-A of the said Act, 2002. In reliance of the aforesaid submission, he relies upon the decision of the Apex Court in the case of Competition Commission of India vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avention of the provisions contained in sub-section (1) of Section 3 formed a prima facie opinion under Section 26 (1) of the Act and directed the Director General to cause an investigation into the matter. (ii) Order dated 08.08.2018 vide which the CCI rejected the petitioner's application seeking a review and recall of the above mentioned Order dated 06.12.2016. 27. The consequent order under challenge in WP(C) No. 6342/2018 is:- (i) Order dated 27.08.2018 passed by the CCI imposing penalty to the tune of Rs. 5,00,000/- (Rupees Five Lakhs) under Section 43 of the said Act, 2002 against the petitioner company for non-furnishing information as sought by the Director General for the purpose of conducting the investigation as directed by the impugned Order dated 06.12.2016. 28. It appears that the said impugned Orders dated 06.12.2016 and 08.08.2018 were triggered by information received from respondent No. 2 and reference from the Govt. of Assam and that the information as alleged in the said letters were that there had been cartelization amongst the cement manufacturers as the said manufacturers had simultaneously increased the price of cement within the State of Assam ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediate goal of the project was to promote economic prosperity and was ancillary to its fundamental political purpose, which was "to substitute for age old rivalries, the merging of essential interests; to create, by establishing an economic community, the basis for a broader and deeper community among peoples long divided by bloody conflicts". Pertinent that the same can be traced in two major documents, the Schuman Plan and Spaak Report. 33. After independence, India followed a centrally planned economy, thereby vesting all the power to make economic decision upon the public sector and the Government. This model was known as the Nehruvian Socialism Model (Mixed Economy Model), also known as "Command and Control" economy. It was a mid way between an extreme market economy and socialist economy. Both the private and public sector were co-existing but there was more restriction, control and supervision on the private sector. Public sector businesses were also failing miserably and the Government was burden with debt and the restriction on the private sector made it impossible for those businesses to contribute positively to the Indian economy. Therefore, in 1991 through liberali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statements and objects and reason of the said Act, 2002 for ready reference:- "The Monopolies and Restrictive Trade Practices Act, 1969 has become obsolete in certain respects in the light of international economic developments relating more particularly to competition laws and there is a need to shift our focus from curbing monopolies to promoting competition. 2. The Central Government constituted a High Level Committee on Competition Policy and Law. The Committee submitted its report on the 22nd May, 2000 to the Central Government. The Central Government consulted all concerned including the trade and industry associations and the general public. The Central Government after considering the suggestions of the trade and industry and the general public decided to enact a law on Competition. 3. The Competition Bill, 2001 seeks to ensure fair competition in India by prohibiting trade practices which cause appreciable adverse effect on competition in markets within India and, for this purpose, provides for the establishment of a quasi-judicial body to be called the Competition Commission of India (hereinafter referred to as CCI) which shall also undertake competition advocac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Monopolies and Restrictive Trade Practices Act, 1969 and the dissolution of the Monopolies and Restrictive Trade Practices Commission. The Bill provides that the cases pending before the Monopolies and Restrictive Trade Practices Commission will be transferred to the CCI except those relating to unfair trade practices which are proposed to be transferred to the relevant fora established under the Consumer Protection Act, 1986. 9. The Bill seeks to achieve the above objectives. Statement of Objects and Reasons of Amendment Act 39 of 2007- The Competition Act was enacted in 2002 keeping in view the economic developments that have resulted in opening up of the Indian economy, removal of controls and consequent economic liberalization which required that the Indian market be geared to face competition from within the country and outside. The Competition Act, 2002 provided for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which- (a) directly or indirectly determines purchase or sale prices; (b) limits or controls production, supply, markets, technical development, investment or provision of services; (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way;" 39. Section 4 of the said Act, 2002 is quoted hereunder for ready reference:- "4. Abuse of dominant position.-[(1) No enterprise or group shall abuse its dominant position.] (2) There shall be an abuse of dominant position [under sub-section (1), if an enterprise or a group]- (a) directly or indirectly, imposes unfair or discriminatory- (i) condition in purchase or sale of goods or service; or (ii) price in purchase or sale (including predatory price) of goods or service. Explanation. ---For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include the powers and functions specified in sub-sections (3) to (7). (3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under Section 3, have due regard to all or any of the following factors, namely:- (a) creation of barriers to new entrants in the market; (b) driving existing competitors out of the market; (c) foreclosure of competition by hindering entry into the market; (d) accrual of benefits to consumers; (e) improvements in production or distribution of goods or provision of services; or (f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services. (4) The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under Section 4, have due regard to all or any of the following factors, namely:- (a) market share of the enterprise; (b) size and resources of the enterprise; (c) size and importance of the competitors; (d) economic power of the enterprise including commercial advantages over competitors; (e) vertical integration of the enterprises or sale or service network of such ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information. (2) Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under Section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (3) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission. (4) The Commission may forward a copy of the report referred to in sub-section (3) to the parties concerned: Provided that in case the investigation is caused to be made based on a reference received from the Central Government or the State Government or the statutory authority, the Commission shall forward a copy of the report referred to in sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the average of the turnover or income, as the case may be, for the last three preceding financial years, upon each of such person or enterprise which is a party to such agreement or has abused its dominant position: Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent. of its turnover or income, as the case may be, for each year of the continuance of such agreement, whichever is higher. Explanation 1.--For the purposes of this clause, the expression "turnover" or "income", as the case may be, shall be determined in such manner as may be specified by regulations. Explanation 2.--For the purposes of this clause, "turnover" means global turnover derived from all the products and services by a person or an enterprise.] (c) [***] (d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission; (e) direct the enterprises concerned to ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 19 of the said Act, 2002. However, it appears that under Section 26 (1) of the said Act, the CCI before directing the Director General to cause an investigation, has to form an opinion on the basis of the information received thereof that there exist a 'prima facie' case. Therefore, it is amply apparent that only after the CCI is of the opinion that there exists a 'prima facie' case, it shall direct the Director General to cause an investigation to be made in the matter. In other words, the information received must prima facie indicates that there exist agreement which is likely to cause an appreciable adverse effect on competition within India and such agreement or decision taken by any association of enterprises, including cartel engaged in identical or similar trade of goods or provision of services which directly or indirectly determines purchase or sell prices; limit or control production, supply, market, technical development, investment or provisions of services; share the market or source of production or provisions of services by way of allocation of geographical area of market, or types of goods or services, or number of customer in the market or any other similar w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such, such orders of the CCI directing the Director General to investigate, which is the order impugned in the present writ petition is not an appealable order under the provision of Section 53A of the said Act, 2002. 49. At this juncture, it would be relevant to refer to the said two letters of information received based on which the CCI has directed the Director General to investigate into the subject matter by the impugned Order dated 06.12.2016. 50. Para 1 to 11 of the letter dated 02.09.2016 submitted by the respondent No. 2 is reproduced hereunder for ready reference:- "1. The petitioner is an association of bulk purchasers of cement as their members are in the business of construction and real estate development across the state of Assam. The members of the petitioner association are engaged in building homes including homes for the common people under the affordable housing category. 2. The respondents above named are three dominant cement manufacturers in the North Eastern Region of India. Their operations are heavily financed by the government with the taxes paid by the common citizens; in the form of huge subsidies under the North East Investment and Industrial P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a much lower price in neighbouring States. We have collected data from our CREDAI chapters in Siliguri(Assam West Bengal border), Kolkata, Ranchi and Patna amongst a host of other regions and submit herewith the some of the figures obtained of average price of these three brands per bag. We have also indicated the road distance of these markets from Guwahati. Kolkata (550kms) Rs/bag Siliguri (500kms) Rs/bag Ranchi (1100 kms) Rs/bag Patna (900kms) Rs/bag Guwahati (Rs/bag) 225 250 250 260 360 The above figures proves that there is blatant cartelisation by the respondents as there is neither any impact on additional transport cost nor competition between the parties as they are selling at similar price in all neighbouring areas outside as well as within the north east. 7. The above table also demonstrates that inspite of the liberal subsidies the price of cement has been artificially hiked by these cartels and the citizens of this part of the country has been fleeced into paying the highest rates in India. 8. We have recently had a discussion with the Dungsam Cement Corporation Ltd of Bhutan, the manufacturers of Dragon Cements, and they are willing to supply ceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney receipts documenting site delivered price at Siliguri is enclosed for your kind verification. (c) Allow the petitioner to place additional relevant facts, figures and supporting evidence before your honour as may be required to establish the truth from time to time. (c) Impose a penalty of Rs 10,000/= crores (Rupees ten thousand crores only) on each of the respondent companies, namely Star Cements, Topcem Cements and Dalmia Cements aggregating a total of Rs 30,000/= crores (Rupees thirty thousand crores only) on account of the illegitimate gains made from the tax payers money in the form of subsidies received since inception and further illegitimate gain made by cartelisation and manipulating the market price." 51. Relevant portion of the information submitted by the respondent No. 3 by Letter dated 05.09.2016 is also reproduced hereunder for ready reference:- "From: Shri Rajesh Prasad, IAS Commissioner & Secretary, Food, Civil Supplies & Consumer Affairs Government of Assam Dispur To: The Competition Commission of India Hindustan Times Building Kasturba Gandhi Marg New Delhi Subject: Information under Section 19 (1) (b), Competition Act, 2002 regarding cartel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 30/08/2016 has been shown in Annexure I enclosed herewith which is supported by relevant Invoices in Annexure III.) 3. M/s. Star Cement Ltd. (Star Brand) billed a bag of cement for Rs. 345/- on 16/08/2016. This was increased to Rs. 366/per bag on 17/08/2016. Similarly the MRP of a bag of cement which was Rs. 370/- on 16/08/2016 was increased to Rs. 400/- on 17/08/2016. (The details of movement of prices between 1/08/2016 and 30/08/2016 has been shown in Annexure I enclosed herewith which is supported by relevant Invoices in Annexure IV.) A market study of whole sale prices prevailing in Siliguri (West Bengal) market during the month of August, 2016 reveals that the same bag of Topcem /Dalmia/Star Cement was available in the open market at a much lower price in Siliguri (West Bengal) as compared to the prevailing prices of the same in Assam. Moreover after 16/08/2016, though the prices in Assam were raised but the same remained more or less constant in Siliguri. For example, a bag of TOPCEM cement was billed at Rs. 310/- on 16/08/2016 in Siliguri while the same was billed at Rs. 325/- in Guwahati. Again on 17/08/2016 a bag of TOPCEM cement was billed at Rs. 310/- in Silig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their installed capacity and/or indulging in chocking up supply in the market, in contravention of Section 3 (3) (b) of the Act. Meanwhile the entire matter has got wide range of public scrutiny with both electronic and print media paying due attention to the matter. (Annexure VI) In view of the above, this information about contravention of Section 3, Competition Act, 2002 is being submitted under Section 19 (1) (b) of the Act, for kind consideration, investigation, and appropriate orders by the Competition Commission of India." 52. Based on the aforesaid two letters of information, the CCI by the impugned Order dated 06.12.2016 directed the Director General to cause an investigation into the matter and to complete the investigation within a period of 60 days from the date of receipt of this order under provision of Section 26 (1) of the said Act, 2002. Relevant paragraphs of the said impugned Order dated 06.12.2016 is also reproduced hereunder for ready reference:- "5. The Informants appear to be aggrieved by the conduct of the OPs in simultaneously raising the prices of their respective brands of cement in North Eastern states during August, 2016 without any correspond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C, Ultratech, etc. which are not enjoying any subsidies under NEIIPP and incurring additional transportation costs as their factories are located in other parts of the country are selling cement at marginally higher prices than the OPs in the North Eastern states. 7. Based on the above observations, the Commission is of the view, that there exists a prima facie case and there was meeting of minds amongst the OPs to determine the price of cement in the North Eastern states. The Commission observes that all the OPs have simultaneously raised the prices of their respective brands of cement on 17.08.2016 and simultaneously reduced the prices on 22.08.2016. There seems to be no economic logic for such simultaneous increase and reduction in prices by the OPs on same dates. There may be certain market situations which require change in the price of a product by the producers, but changing the prices together on the same date shows some concerted action by the OPs. It is also observed that the prices of OPS followed a similar trend during the month of August, 2016 indicating a parallel movement of prices. 8. Further, from the analysis of the regional and monthly average cement prices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontravention of Section 3 and/or Section 4 of the said Act, 2002. 54. Therefore, the issue that arises at the outset is whether at the stage of the CCI directing investigation under Section 26 (1) of the said Act, 2002, a writ petition under Article 226 of the Constitution of India is maintainable. 55. Reiterated that, the CCI at this stage of directing the investigation under Section 26 (1) of the said Act, 2002, is obliged under the statute to apply its mind upon the information received and take a decision as regards the existence of a prima facie case showing contravention of Section 3 and/or 4 of the said Act, 2002. Therefore, it is imperative for the CCI to exercise the powers of directing investigation under Section 26 (1) of the said Act, 2002 strictly in accordance with the parameters provided therein. Certainly CCI is not adjudicating the information received at this stage and is merely directing an investigation thereof. However, since the manner of exercising such power/jurisdiction is provided under the statute itself, such power/jurisdiction has to be strictly followed in the manner provided thereof and any other manner is statutorily forbidden. Reiterated that exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmissible and it was open to the respondents to point out that the complete material, as submitted by the respondents, was not taken into consideration which resulted in an erroneous order, which had adverse civil consequences inasmuch as the as the respondents were subjected to further investigation by the Director General. 116. We may mention at the outset that in SAIL, nature of the order passed by CCI under Section 26 (1) of the Competition Act [here also we are concerned with an order which is passed under Section 26 (1) of the Competition Act] was gone into. The Court, in no uncertain terms, held that such an order would be an administrative order and not a quasi-judicial order. It can be discerned from paras 94, 97 and 98 of the said judgment, which are as under (SAIL case14, SCC pp. 785 & 787) "94. The Tribunal, in the impugned judgment, has taken the view that there is a requirement to record reasons which can be express, or, in any case, followed by necessary implication and therefore, the authority is required to record reasons for coming to the conclusion. The proposition of law whether an administrative or quasi-judicial body, particularly judicial courts, should r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the intimation or reference submitted to the Commission and sent for investigation to the Director General, as the case may be, together with all evidence and documents collected during investigation. The inevitable consequence is that the Commission is similarly expected to write appropriate reasons on every issue while passing an order under Sections 26 to 28 of the Act." 117. There is no reason to take a contrary view. Therefore, we are not inclined to refer the matter to a larger Bench for reconsideration. 118. It was, however, argued that since SAIL was not dealing with the telecom sector, which is regulated by the statutory regulator, namely, TRAI under the TRAI Act, that judgment would not be applicable. Merely because the present case deals with the telecom sector would not change the nature of the order that is passed by CCI under Section 26 (1) of the Competition Act. However, it raises another dimension. Even if the order is administrative in nature, the question raised before the High Court in the writ petitions filed by the respondents touched upon the very jurisdiction of CCI. As is evident, the case set up by the respondents was that CCI did not have the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive.' The existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a court or tribunal. 36. It is thus clear that for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide adjudicatory facts or facts in issue." 120. Thus, even when we do not agree with the approach of the High Court in labelling the impugned order as quasi-judicial order and assuming jurisdiction to entertain the writ petitions on that basis, for our own and different reasons, we find that the High Court was competent to deal with and decide the issues raised in exercise of its power under Article 226 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcom Cement India Limited billed a bag of cement for Rs. 347/- on 16.8.2016. This was increased to Rs. 375/- per bag on 17.8.2016. v) M/s Topcem India billed a bag of cement for Rs. 325/- on 16.08.2016. This was increased to Rs.365/- per bag on 17.08.2016. Similarly, the MRP of a bag of cement which was Rs. 345/- on 16.08.2016 was increased to Rs. 385/- on 17.08.2016. vi) M/s Star Cement Limited (petitioner Company) billed a bag of cement of Rs. 345/- on 16.08.2016. This was increased to Rs.366/- per bag on 17.08.2016. Similarly, the MRP of a bag of cement which was Rs. 370/- on 16.08.2016 was increased to Rs. 400/- on 17.08.2016. vii) A market study of whole sale prices prevailing in Siliguri (West Bengal) market during the month of August 2016 reveals that the same bag of Topcem/ Dalmia/ Star cement was available in the open market at a much lower price. viii) Selling cement in Siliguri at prices lower than those at Guwahati by all the three companies, in spite of additional transportation cost, establishes the collusion and cartelization between the companies. 65. It further appears that the CCI mainly on the three grounds stated below as recorded in paragraph No. 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany namely Calcom Cement Limited increased its prices by Rs. 21/- i.e. Rs. 345/- to Rs. 366/- whereas, the another cement Company namely, Topcem Cement Limited raised the sale price of cement bag by Rs. 40/- i.e. from Rs. 325/- to Rs. 365/- and the petitioner raised the sale price of cement bag by Rs. 28/- i.e. from Rs. 347/- to Rs. 375/-. As such, there was no uniform increase in the prices of cement by the three cement companies. Whereas, one cement company increase the price by Rs. 21/-, the second company increase the price by Rs. 40/- and the petitioner increase the price by Rs. 28/-. The prices of the cement after increase is also stated to be different i.e. Rs. 365/- and Rs. 375/-. When there was no uniform rising of the prices by the three cement companies, it cannot be said by any stretch of imagination that there was any agreement entered into by three cement companies, which directly or indirectly determined the purchase of sale price. Infact, the different increase in prices and different sale prices of cement instead of having adverse effect of competition would lead to better competition between the cement companies. Further, the claim of the informant that one of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cannot be said to be a factor of making an adverse effect on the competition and thereby violating Section 3 (3) (a) and Section 3 (3) (b) of the said Act, 2002. 71. Thus, it is apparent that the information received does not disclose existence of the prima facie case as regards contravention of the provisions of the Section 3 and/or 4 of the said Act, 2002, and since the same is a sine qua non for CCI to direct the investigation, the decision of the CCI in directing investigation without fulfillment of the said mandatory pre-condition is totally without jurisdiction and is therefore, null and void. 72. In Central Council for Research in Ayurvedic Sciences and Anr. Vs. Bikartan Das & Ors, reported in 2023 SCC OnLine SC 996, the Apex Court at paragraph 58 held as under: "58. From the aforesaid, it could be said in terms of a jurisdictional error that want of jurisdiction may arise from the nature of the subject matter so that the inferior court or tribunal might not have the authority to enter on the inquiry. It may also arise from the absence of some essential preliminary or jurisdictional fact. Where the jurisdiction of a body depends upon a preliminary finding of fact in a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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