VIPIN SANGHI, J.

1. The petitioner-Union of India (UOI) through the Chairman, Railway Board, Ministry of Railways assails the order dated 03.05.2011 passed by the Competition Commission of India (Commission) in Case No. 64/2010, whereby the said Commission has rejected the petitioner’s challenge to jurisdiction of the Commission to entertain the complaint on the basis of the information of respondent No. 2 under Section 19(1) of the Competition Act, 2002 (the Act). The Commission has rejected the stand of the petitioner that it is not an ‘enterprise’ within the definition of the said term as contained in Section 2(h) of the Act. The petitioner also raised an objection to the maintainability of proceedings before the Commission by contending that an arbitration agreement existed between respondent No. 2 and the petitioner and, consequently, the proceedings before the Commission could not proceed and were liable to be referred to arbitration under Section 8 of the Arbitration & Conciliation Act, 1996. This objection too has been rejected by the Commission.

2. Respondent No. 2 approached the Commission under Section 19(1) of the Act, complaining against the Ministry of Railways and the Container Corporation of India (CONCOR), inter alia, alleging contravention of Section 4 of the Act. It is the case of respondent No. 2 that as per the Public Private Partnership (PPP) policy of the Indian Railways and the Permission for Operators to Move Container Trains on Indian Railways Rules, 2006 (CTO rules) a Model Concession Agreement was entered into between the Ministry of Railways and the parent company of the informant respondent No. 2 on 09.05.2008 for operating container trains over rail network in India for domestic traffic as well as for export & import traffic. According to the informant, it had invested Rs.550 Crores towards the project undertaken by it. It was alleged by the informant that the Ministry of Railways had abused its dominant position through its various acts/conduct, viz, by increasing charges for various services; by not providing access to infrastructure such as rail terminals, etc; by imposing several restrictions on the carrying by the respondent No. 2 of certain categories of goods in alleged contravention of provisions of Section 4 of the Act.

3. The Commission, after perusing the information and the material filed in support thereof, and after considering the submissions made by the informant/respondent No. 2 was of the opinion that there existed a prima-facie case to order the Director General to investigate into the matter and, accordingly, the Commission passed an order to this effect under Section 26(1) of the Act on 24.01.2011.

4. The Director General in furtherance of the order took up the investigation into the matter and issued notice to the petitioner. The petitioner then preferred a writ petition before this Court to challenge the said notice by raising various jurisdictional pleas. The writ petition was dismissed by the Court on 23.03.2011 by observing that the petitioner may raise all the pleas urged in the writ petition, including the plea that the Commission has no jurisdiction to issue show-cause notice, before the Commission itself and the said issues shall be decided by the Commission.

5. Thereafter the petitioner moved an application dated 30.03.2011 before the Director General praying, inter alia, that the Commission may decide the issue of jurisdiction first, and to consider the case thereafter on merits. Vide the impugned order it is this application of the petitioner, alongwith an application under Section 8 of the Arbitration and Conciliation Act, 1996 which have been rejected by the Commission.

6. The Commission rejected both the objections of the petitioner. It was held that the issues raised in the proceedings before it relate to the alleged abuse of dominant position by the Railways in contravention of the provisions of the Act, whereas the arbitration agreement covers the