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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Shree Shivam Corporation Through Its Sole Proprietor Mr. Prahlad Durlabhjibhai Joshi – Appellant
Versus
Competition Commission Of India – Respondent
Special Civil Application No. 11152 of 2020
Decided on : 09-09-2022
Constitution of India, 1950 - Article 226, 14 - Competition Act, 2002 - Section 26(2), 26(1), 43, 53A - provisions of the Act, 1972 - Section 26 - Indian Evidence Act, 1872 - Section 65B - Company Law Board (Procedure) Rules, 1964 –Rule 3 - Empowers all the High Courts of India to issue the writ- Equality before law The State shall not deny to any person equality before the law or the equal protection - Power to impose penalty for non-furnishing of information on combinations - Delegation of Collector's powers -Whether Chairman in his affidavit has shown existence of circumstances leading to such tentative conclusions - If he has, his action cannot be questioned because in reference is to be drawn subjectively and even if this Court would not have drawn a similar inference that fact would be irrelevant –Held, This Court is of considered opinion that Writ-Petitions are devoid of merit and deserved to be dismissed - However, it is pertinent to note that during pendency of petitions, Director General has also issued certain notices to initiate penalty proceedings under Section 43 of Act, as there was no stay in operation against impugned order of Commission - It is true that there was no stay in operation, however, since matter was sub judice and there was Covid-19 Pandemic prevailing in Country, Commission may not have issued such notices for initiation of Penalty proceedings - Be that as it may be, Considering facts and circumstances of case, impugned action of issuance of Notice for initiation of penalty action by Commission/ Director General needs to be stayed - At same time, some sort of time needs to be granted to petitioners to reply notice, which has been issued on basis of impugned order of Commission for initiation of inquiry - Petitions dismissed.
JUDGMENT :
1. The present group of petitions are filed against the order of respondent Nos. 1 and 2 passed in Case No. 24/2019 initiating the investigating proceedings and other notices, issued thereof, and involves the provisions of Competition Act, 2002. All these petitions are tagged together and heard finally at admission stage.
2. Since common arguments has been adressed in relation to Special Civil Application No. 10933 of 2020, the said matter has been treated as lead matter and the facts have been taken from the said petition.
3. At the outset, it requires to be observed that the petitioners of Special Civil Application No.11152 of 2020, Special Civil Application No.9521 of 2020, Special Civil Application No. 9520 of 2020, Special Civil Application No. 9583 of 2020, Special Civil Application No. 10933 of 2020, Special Civil Application No. 11124 of 2020, Special Civil Application No. 11122 of 2020, Special Civil Application No. 11128 of 2020, Special Civil Application No. 11126 of 2020, Special Civil Application No. 11123 of 2020, Special Civil Application No. 11127 of 2020, Special Civil Application No. 11150 of 2020, Special Civil Application No. 11146 of 2020 and Special Civil Application No. 11155 of 2020 have moved draft amendment in the respective petitions. Considering the facts and circumstances of the case, the same are hereby allowed in respective petitions.
4. The brief facts arising out of the petition are as under:
4.1 Petitioner No.1 is a private limited Company incorporated under the Companies Act having registered office at Ahmedabad, Gujarat. That the primary activity involves printing and binding of School Book and related material, the primary consumer of which in the State of Gujarat is the Gujarat Council and Elementary Education (in short 'GCEE'). GCEE is a registered Society working towards the attaining of the object of Sarvasikshan Abhyan, inter alia, "Pragna Project" i.e. activity based learning approach. That it was empanelled with the GCEE in 2016 having met all the prerequisite set by GCEE in this regard. That the petitioner No.2 is a Director and share holder of petitioner No.1.
4.2 That the petitioner No.1 was arrayed as opponent party in Case No. 32 of 2018 before respondent No.1. The said case was based on the allegation in the Information Petition filed by the father of the respondent No.3 and pertaining to the work carried out by various printers and binders in the Gujarat State Board of School Text Books [(GSBSTB for the sake brevity)] with regard to the GSBSTB Tenders for printing and binding school text books. Respondent No.3 having failed in the Tender process of GSBSTB filed the Case No. 32 of 2018 against the successful bidders, alleging bid rigging and also filed case No. 4 of 2019 against GSBSTB alleging abuse of dominian possession by GSBSTB.
4.3 By way of order dated 7.8.2019 under Section 26(2) of the Competition Act, 2002 in case No. 4 of 2019, respondent No.1 rejected the allegations against GSBSTB by holding that there was no prima-facie case. As regards case No. 32 of 2018, alleging bid rigging, the respondent No.1 passed order dated 9.11.2018 under Section 26(1) of the said Act, purportedly contending the prima-facie opinion against the bidders and directing respondent No.2 to conduct an investigation as per the Act. The said Order was challenged before this Court vide SCA No. 8010 of 2020 and this Court was pleased to quash the same vide its order dated 18.8.2020, as the said order did not reflect formation of any prima-facie opinion by the respondent No.1.
4.4 It is contended by the petitioner that in continuation of the Information Petition filed by his father, with the sole objective of harassing other printers and eliminating competition in Gujarat by keeping other printers embroiled in the litigation and under fear of being penalising for participating and not being awarded any tender, respondent No.3 filed Information Petition in or around June, 2019, which is "for supp
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