Point of Law: An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law.

ORDER :

Amazon Seller Services Pvt. Ltd., ['Amazon' for short], and Flipkart Internet Pvt. Ltd.['Flipkart' for short], have filed these writ petitions with prayers inter alia to quash order dated January 13, 2020 passed by the Competition Commission of India['Commission' for short], in Case No.40/2019, directing an investigation under Section 26(1) of the Competition Act, 2002 ('Act' for short) by the Director General['DG' for short].

Facts of the case:

2. Amazon and Flipkart have averred that they are private limited Companies. They operate 'Online Market Places’ on which, products listed for sale, are owned and sold by third parties.

3. Amazon has pleaded that it also provides certain support services to third party sellers to facilitate sale of goods. Those services are integral and non-separable from retail trade and include warehousing, packing, shipment, delivery/return of products centralized payment processing, refund etc.

4. Delhi Vyapar Mahasangh (respondent No.2) is a Society comprising of Micro, Small and Medium Enterprises registered under the Societies Registration Act, 1860. It has filed information alleging contravention of Section 3(1) read with Section 3(4) and Section 4(1) and 4(2) of the Competition Act and sought directions for investigation under Section 26(1) of the Competition Act. Upon consideration of the said information, Commission has passed the impugned order.

5. The main grounds urged on behalf of petitioners are:

(a) The impugned order is ultra vires the object and purpose of Competition Act;

(b) The impugned order suffers from non-application of mind;

(c) Delhi Vyapar Mahasangh, the informant has acted on behalf of Confederation of All India Traders['CAIT' for short] which has initiated multiple proceedings against petitioners, but failed to obtain any order;

(d) The impugned order cannot be improved by additional justification in the Statement of objections by the Commission;

(e) Commission has deviated from its own earlier practice;

(f) Petitioners are not provided with any notice. On earlier occasions, while dealing with similar allegations, the Commission had provided opportunity of hearing before forming a prima facie view.

(g) The impugned order is not a reasoned order as there is no analysis with regard to Appreciable Adverse Effect on Competition['AAEC' for short];

(h) The Commission has not formed any prima facie opinion with regard to contravention of any provision.

(i) The jurisdiction of CCI is barred on account of pending investigation by the Enforcement Directorate; and

(j) The impugned order is abuse of process of law and would cause grave hardship to the petitioners.

6. Amplifying the grounds urged in support of writ petitions, Shri. Gopal Subramanium, learned Senior Advocate has submitted that:

• The Competition Act is to foster the competition in the Country. An Online Market place, in fact, promotes Competition and cannot be treated as anti-competitive, unless, there is clear and cogent evidence to that effect. This factor has not been considered by the Commission;

• Commission’s main objects are, to prevent practices having adverse effect on Competition, to promote and sustain Competition in the markets, to protect the interests of consumers and to ensure freedom of trade. The Commission has not considered these aspects. Therefore, the impugned order is contrary to the law laid down in Competition Commission of India Vs. Steel Authority of India Ltd., and Ors., (2010)10 SCC 744 (paragraphs No.6 & 13) and Competition Commission of India Vs. Bharathi Airtel Ltd., and Ors., (2019)2 SCC 521 (paragraph No.74), and ultra vires the object and purpose of the Competition Act;

• In Star India Pvt. Ltd., Vs. Competition Commission of India, (2019) SCC Online Bombay 3038, the Hon'ble High Court of Bombay has held that to initiate investigation, it would be necessary for Commission to come to a prima facie view with regard to practices complained of and if they result or likely to result in some AAEC;

• Thr