The central legal point established in the judgment is the need for evidence of meeting of minds to establish a violation of the Competition Act, particularly in the context of common practices in the real estate sector.

RAJIV SAHAI ENDLAW, J.

1. This petition under Article 226 of the Constitution of India impugns the order dated 3rd February, 2015 of the respondent no.1 Competition Commission of India (CCI) in case No.59/2011 holding no violation of the provisions of the Competition Act, 2002 having been committed, inspite of the Director General (DG) of the CCI in its Report having recommended that there is contravention of the provisions of the Act. The petition was entertained and notice thereof issued.

2. After notice, when the petition was listed before this Court on 12th February, 2016, I had of my own enquired from the counsels whether not such an order was appealable before the Competition Appellate Tribunal (COMPAT).

3. The counsels drew attention to Section 53A(1)(a) of the Competition Act which empowers COMPAT “to hear and dispose of appeals against any direction issued or decision made or order passed by the Commission under Sub-Sections (2) and (6) of Section 26…….”. It was further pointed out that Sub-Section (2) of Section 26 provides for CCI, on receipt a reference from the Central Government or a State Government or a Statutory Authority or information received under Section 19, closing the matter forthwith if of the opinion that there exists no prima facie case. It was stated that CCI in the present case did not so close the matter but rather was of the opinion that there existed a prima facie case and in exercise of powers under Sub-Section (1) of Section 26 had directed the DG to cause an investigation to be made in the matter. It was further pointed out that DG submitted its Report recommending that there was contravention as averred in the information; however CCI, after consideration of the objections and suggestions of the parties concerned has vide the impugned order dated 3rd February, 2015 differed from the findings of the DG on issue of contravention of provisions of Sections 3(3)(a) & (b) of the Competition Act and held that sufficient evidence is not available on record which warrants a finding of contravention of the provisions of the Act and accordingly closed the matter. It is argued that Sub-Section (6) of Section 26 against a direction, decision or order whereunder the remedy of appeal to COMPAT has been provided is as under:-

“(6) If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission agrees with the recommendation of the Director General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.”

i.e. provides for a contingency where the CCI agrees with the recommendation of the DG and closes the matter and not the contingency where CCI has disagreed with the recommendation of the DG, as has happened in the present case. It was argued that since the remedy of appeal is not provided, the petition under Article 226 of the Constitution would be maintainable against such an order.

4. Though the counsel for the petitioner on 12th February, 2016 also contended that the said question is no longer res integra in view of the judgment of the Supreme Court in Competition Commission of India Vs. Steel Authority of India Limited (2010) 10 SCC 744 but to me it prima facie did not appear so.

5. I had on 12th February, 2016 itself drawn the attention of the counsels to Vinod Kumar Chowdhry Vs. Narain Devi Taneja (1980) 2 SCC 120 where the Supreme Court, though in the context of Section 25B(8) of the Delhi Rent Control Act, 1958 held that the words “order for recovery of possession of premises” have to be construed as an order deciding the application for recovery of possession of premises because there can be no discrimination between the remedies available to the two parties to a litigation and which will render the provision unconstitutional and because of the overall scheme of the Act. Attention of