S. MURALIDHAR

ORDER

1. Both writ petitions challenge an order dated 16th June 2010 passed by the Competition Commission of India (`CCI’) under Section 26(1) of the Competition Act, 2002 (`CA’).

2. The background to the present petitions is that by an order dated 13th February 2009, the Monopolies and Restrictive Trade Practices Commission (`MRTP Commission’) took cognizance, under Section 11(1) of the Monopolies and Restrictive Trade Practices Act, 1969 (`MRTP Act’), of reports in the print and visual media that airline operators, including the Petitioners herein, had collectively increased air fares and withdrawn the promotional fares as a result of which additional costs were imposed on the consumer and competition in the industry was reduced. The MRTP Commission formed a prima facie opinion that the alleged practice was a restrictive trade practice as defined under Section 33(1)(d) and 33(1)(j) of the MRTP Act. Consequently in exercise of its powers under Regulation 18 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1991 (`MRTP Regulations’), the MRTP Commission ordered a preliminary investigation into the matter by the Director General (Investigation & Registration) [`DG(I&R)’] and further directed that the copy of the information/material collected should be submitted to the Commission within sixty days thereafter. The case was registered as `Restrictive Trade Practices Enquiry No. 5 of 2009’ (`RTPE’).

3. On 27th April 2009 the Office of the DG(I&R) sent letters to the Petitioners asking them to furnish information and documents to enable the DG(I&R) to undertake the necessary investigation. The subject matter of the said communication was ?Restrictive Trade Practices – Investigation under Section 11(1) of the MRTP Act, 1969.? The Petitioner Inter Globe Aviation Ltd. (`IAL’) replied to the said letter on 29th May 2009 providing certain information. Likewise some of the other Petitioners also replied to the said notice.

4. On 28th August 2009 a notification was issued by the Ministry of Corporate Affairs, Government of India repealing the MRTP Act with effect from 1st September 2009. On 14th October 2009 the President promulgated the Competition (Amendment) Ordinance, 2009 amending Sections 66(1), 66(3), 66(4) and 66(5) of the CA. This later was enacted as the Competition (Amendment) Act, 1999 (`CAA 1999’). On 4th March 2010 the RTPE Case No. 5 of 2009 was transferred by the DG(I&R) to the CCI under Section 66(6) of the CA. Thereafter on 10th June 2010 the CCI passed the impugned order under Section 26(1) of the CA stating that the case had been received on transfer under Section 66(6) of the CA from the Office of the DG(I&R), MRTP Commission. The order recorded a summary of some of the responses received to the notice dated 24th April 2009. In para 26 of the impugned order it was observed that ?at this stage the matter was transferred to the Commission? under section 66 (6) CA and was considered by the CCI at its meeting on 10th June 2010. The CCI then stated in its impugned order that ?there exists a prima-facie case for making reference to DG to make an investigation into the matter. After completing the investigation, the DG shall submit his report within 90 days of the communication of the Commission’s order.

5. On 19th July 2010, a notice was sent by the DG(I&R) under Section 41 read with Section 36(2) CA to the Petitioner seeking information. On 20th August 2010 the Petitioner IAL wrote to the Secretary, CCI requesting for copies of the information/documents as also the order passed by the CCI on the basis of which investigations were initiated. On 30th August 2010 the Petitioner IAL inspected the file of RTPE No. 5 of 2009 and requested the Secretary, CCI to provide copies of the inspected information/documents. This was provided on 6th September 2010 by the DG(I&R) stating that a reply must be filed by 10th September 2010. Further time was granted by t