Sunil Gaur, J.

C.M. No. 19744/2010 (Order 6 Rule 17 CPC) & W.P.(C) No. 8531/2008

1. An important jurisdictional issue which arises for consideration herein is whether this writ petition, though filed prior to invoking of jurisdiction of Competition Commission of India (which became fully operational during the pendency of the writ petition), would be still maintainable for primarily assailing Memorandum of Understanding of 1st February, 2003 between the first respondent-Ministry of Railways and the third respondent- Steel Authority of India (SAIL), as the petitioner has already challenged it before Competition Commission of India being anti-competitive.

2. Since preliminary objection regarding maintainability of this writ petition was raised by learned senior counsel for the respondents, when petitioner had come up with an application to amend the writ petition to specifically challenge the Memorandum of Understanding of 1st February, 2003, therefore, submissions advanced by both the sides on the aspect of maintainability of this writ petition as well as on the applications for amendment of the writ petition and directions, were heard together and are being dealt with in this common order.

3. Though the relief sought in this writ petition and before the Competition Commission of India is not identical but in substance the nature of relief sought in these two proceedings is substantially the same, as is asserted by Mr. Dutta learned Senior Counsel for the respondent-railways, who fervently urged to terminate these writ proceedings forthwith because according to the respondents, prosecution of the two remedies i.e. the writ petition and the petition before the Competition Commission of India, not only amounts to multiplicity of proceedings leading to conflicting decisions, but would also amount to abuse of the process of this Court.

4. What was precisely emphasised by Mr. Dutta learned senior counsel for the respondent-railways was that purpose to be achieved by pursuing these two overlapping remedies by the petitioner is singular i.e. to render the aforesaid Memorandum of Understanding sterile. It is urged that this purpose can be achieved by resorting to one remedy and not by simultaneously pursuing both the remedies. To put it differently, what is said is that it would be ridiculous to permit the petitioner to ride on two boats simultaneously for reaching one destination i.e. for getting the aforesaid Memorandum of Understanding set at naught.

5. Mr. Singhvi learned senior counsel for the petitioner astutely urged that statutory remedy cannot dilute the constitutional powers vested in this Court under Article 226 of Constitution of India, as infringement of fundamental rights of the petitioner is alleged in the writ petition, whereas the extent and jurisdiction of Competition Commission of India under The Competition Act 2002, is entirely different and the two remedies are concurrent and so Public Law Remedy cannot be barred. In other words, what is emphasised by learned senior counsel for the petitioner is that the efficacy of the remedy under The Competition Act, 2002, is circumscribed whereas the extra ordinary remedy availed of under Article 226 of Constitution of India by way of this writ petition is infact efficacious one.

6. To contend that the question of resorting to parallel proceedings by the petitioner does not arise, learned senior counsel for the petitioner during the course of hearing, had drawn the attention of this Court to Section 62 of The Competition Act, 2002 to urge that the provisions of the aforesaid Act are in addition to and not in derogation of provisions of any other law for the time being in force.

7. Mr. Singhvi learned senior counsel for the petitioner with his usual persuasiveness had highlighted that The Competition Act, 2002 provides for a mechanism for ensuring fair competition in the Indian market and it does not supplant or impinge upon the writ jurisdiction of this Court and the doctrine of elect