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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Chennai – Appellant
Versus
Competition Commission of India, Hindustan Times House, New Delhi & Others – Respondent
W.P. No. 35047 of 2013 & M.P. Nos. 1 & 2 of 2013
Decided On : 22-12-2021
Constitution of India, 1950 - Article 226 - Competition Act, 2002 - Section 4 (2) (a) (i) - Electricity Act 2003 - Section 23 - Anti-competitive practices – Notice - Powers and functions of Authority - Competition Commission of India on receipt of complaint from third respondent / Southern India Engineering Manufacturers' Association, found that it is evident prima facie Opposite Party was abusing its dominant position by imposing discriminatory conditions in the sale of electricity in relevant market within the meaning of section 4 (2) (a) (i) of Act, 2002 - whether a prima facie case is made out by 3rd respondent for initiation of proceedings under the Competition Act or not is question is to be considered - Whether there is any scope for the Tamil Nadu Electricity Regulatory Commission to conduct an investigation or impose penalty on the TANGEDCO under provisions of Electricity Act or not - Held, Court is not inclined to step-in to nature of the allegations or its veracity or otherwise, which is yet to be investigated by the Director General under provisions of Competition Act. The allegations, which all are not yet investigated by competent authority, it would be unnecessary for the Court to appreciate such allegations or made a finding, which would cause prejudice to either of the parties, either to proceed with investigation or to form an opinion for initiation of further actions under provisions of Competition Act or to refer the matter to the Electricity Regulatory Commission under Electricity Act by invoking Section 21-A of Competition Act. This exercise is to be done by the respondents 1 and 2 and this Court is not inclined to provide any findings on allegations or with reference to the investigations to be conducted by the competent authority - Once an anti-competitive practices are brought to notice of the Competition Commission of India by way of complaint and such allegations are falling under Section 4 of Competition Act, then Competition Commission of India is empowered to conduct investigation and form a final opinion for purpose of initiation of actions. In present case, Electricity Act does not provide any power to Tamil Nadu Electricity Regulatory Commission to conduct investigation, more specifically, with reference to allegations of abuse of dominant position, which is a specific provision under Section 4 of Competition Act - In event of any non- cooperation on the part of writ petitioner, said non-cooperation is directed to be recorded in proceedings itself and in such an event, the outer time limit fixed by this Court cannot be taken as an advantage by writ petitioner for seeking any relief on said ground - Impugned notice categorically states that the Commission after considering the available information, is of opinion that a prima facie case exists and has directed in its order that investigation be made in the matter by the Competition Commission of India. Thus, in order to enable Directorate to investigate matter, in exercise of powers conferred under Section 41(2) read with Section 36(2) of the Competition Act, the information’s along with supporting documents were sought for from writ petitioner/TANGEDCO - Writ petition dismissed.
JUDGMENT :-
(Prayer: Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records relating to the Impugned Order dated 8.10.2013 of Case No.38 of 2013 on the file of the 1st respondent and to the consequent letter dated 3.12.2013 on the file of the 2nd respondent and quash the same.)
1. The impugned order dated 08.10.2013 of Case No.38 of 2013 and the consequential notice dated 03.12.2013 on the file of the second respondent are under challenge in the present writ petition.
2. The Competition Commission of India on receipt of complaint from the third respondent / Southern India Engineering Manufacturers' Association, found that it is evident prima facie Opposite Party was abusing its dominant position by imposing discriminatory conditions in the sale of electricity in the relevant market within the meaning of section 4 (2) (a) (i) of the Competition Act, 2002. Thus, the Competition Commission of India formed an opinion that it is a fit case for Director General investigation. The Director General has to investigate the matter for violation of any / all provisions of the Competition At and the said proceedings of initiation states that “Nothing stated in this order shall tantamount to a final expression of opinion on merit of the case and the Director General shall conduct the investigation without being swayed in any manner whatsoever by the observations made herein”. Thus, the proceedings dated 08.10.2013 is only an acceptance of complaint and thereafter, a notice under Section 41(2) read with Section 36 (2) of the Competition Act, 2002 in CCI Case No.38 of 2013 was issued to the writ petitioner in notice dated 03.12.2013, which is under challenge in the present writ petition.
3. There is no need to adjudicate the merits of the case in the present writ petition as the respondents are yet to adjudicate the merits of the case by providing opportunity to the parties concerned. Thus, any discussion on merits would cause prejudice to either of the parties and thus, this Court is not inclined to adjudicate the merits with reference to the allegations raised.
4. The issues raised in the lis on hand are that the complaint filed by the third respondent before the Competition Commission of India is not maintainable and the Competition Commission of India has no power to entertain any such complaint against the TANGEDCO overriding the provisions of the Electricity Act and issue notice, which is without jurisdiction. The Electricity Regulatory Commission is empowered to adjudicate all such complaints or allegations relating to supply, services, etc., of electricity.
5. Regarding the maintainability of the writ petition under Article 226, no writ needs to be entertained against a notice in a routine manner. A writ against a notice may be entertained only on limited grounds. If the notice has been issued by an incompetent authority having no jurisdiction or directly hitting the provisions of the Act, or if any allegations of mala fides are raised, then the writ petition is maintainable. Even in case of raising an allegation of mala fides, the authority against whom such an allegation is raised, must be impleaded as party respondent in the writ proceedings in his
6. This Court is of the considered opinion that all the writ petitions are maintainable under Article 226 of the Constitution of India. It is not the question regarding the maintainability of the writ petition, but the entertainability of the writ petition is to be looked into. The Courts are bound to consider, whether there is a need to entertain a writ petition and if so, what would be the grounds available for the purpose of entertaining the writ petition.
7. The learned Additional Advocate General appearing on behalf of the petitioner / TANGEDCO mainly contended that the complaint filed by the third respondent before the Competition Commission of India itself is not maintainable. Section 23 of the Electricity Act 2003 provi
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