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2023 Supreme(Mad) 3324
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUSTICE N. SESHASAYEE, J.
Dalmia Cement (Bharat) Limited – Petitioner
Versus
Competition Commission of India, New Delhi – Respondent
W.P. Nos. 22045, 22263 of 2023, W.M.P. Nos. 21421, 21424, 21427, 21430, 21652, 21654, 21657 of 2023
Decided On : 14-08-2023
Advocate Appeared:
For the Petitioners: Vijay Narayan, Prahalad Bhat, P.S. Raman, Abishek Jenasenan.
For the Respondents: Rohan K. George, Anu Monga, Madhavi Divan, R. Thirunavukarasu.
IMPORTANT POINT
The court established that a High Court may decline to exercise jurisdiction under Article 226(2) when another High Court is already considering the same matter, emphasizing the principles of territorial nexus, forum conveniens, and comity of courts.
Headnote:
JURISDICTION - COMPETITION ACT, 2002 - Article 226, Section 2 - The court analyzed the jurisdictional aspects under Article 226(2) of the Constitution of India, emphasizing that a High Court can entertain a writ petition if any part of the cause of action arises within its jurisdiction. The court highlighted the principles of territorial nexus, forum conveniens, and comity of courts, ultimately concluding that the order allowing the impleadment of a party was procedural and did not have a spillover effect in Tamil Nadu, thus declining to exercise jurisdiction.
Fact of the Case:
The writ petitions challenged the order of the Competition Commission of India allowing the Builders Association to be impleaded in a suo motu case concerning alleged cartelization among cement manufacturers. The petitioners contended that the order had ramifications within Tamil Nadu, while the respondents argued that the order was procedural and did not affect substantive rights.
Finding of the Court:
The court found that the order under challenge was procedural and did not have any substantive effect within its jurisdiction. It emphasized that the cause of action did not arise within Tamil Nadu, as the proceedings were initiated in Delhi and the matter was already under consideration by the Delhi High Court.
Issues: 1. Whether any part of the cause of action arose within the territorial jurisdiction of this court. 2. Whether the court should refrain from entertaining the petitions due to the principle of comity of courts, given that the Delhi High Court was already seized of the matter.
Ratio Decidendi: The court reiterated that for a High Court to exercise jurisdiction under Article 226(2), the cause of action must have a nexus with the jurisdiction. It also highlighted the importance of the doctrine of forum conveniens and the principle of comity of courts, stating that where another High Court is already considering the same issue, it is appropriate for the other High Court to decline jurisdiction.
Final Decision: The writ petitions were dismissed, with the court declining to exercise jurisdiction based on the principles of forum conveniens and comity of courts, leaving the parties to seek remedies in the appropriate court.
ORDER :
Prayer in W.P. No. 22263 of 2023: Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records and quash the order dated 05.07.2023 of the respondent No. 1 in Suo Moto Case No. 02 of 2019, by which the impleadment application filed by Respondent No. 3 was allowed and Respondent No. 3 was impleaded as a party in the Suo Moto Case No. 02 of 2019 pending on the file of the Respondent No. 1.
PRAYER in W.P. No. 22045 of 2023: Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records of the first respondent in its order dated 05.07.2023 issued in Suo Motu Case No. 2 of 2019, quash the same.
1.1 Under the Competition Act, 2002, (hereinafter would be referred to as the Act), the first respondent, the Competition Commission of India (hence forth would be referred to as the Commission) has initiated suo motu proceedings in Case No. 02 of 2019 against various cement manufacturers which included the petitioners herein, presumably on suspicion that these manufacturers might have formed a cartel. The matter was referred to the Director General constituted under the Act to investigate the alleged contraventions vis-a-vis the affairs of the cement manufacturers which are of concern of the Act.
1.2 This Court is informed that the Director General has since filed the report. It is in these circumstances, the second respondent, the Builders Association, had taken out an application on 07.12.2021 before the Commission for impleading themselves in the said proceedings. This petition was rejected by the Commission vide its order dated 29.12.2021. This order was assailed by the second respondent before the Delhi High Court in W.P. (C) No. 8958 of 2022. The Delhi High Court, vide its order dated 26.09.2022, had granted liberty to the second respondent herein to approach the Competition Commission with a fresh petition for impleadment. Thereafter, on 27.09.2022, the second respondent filed his second application for impleadment, which was allowed vide order dated 05.07.2023. This order is now under challenge in these writ petitions.
1.3 It has also been brought to the notice of the Court that the very same order is under challenge before the Delhi High Court at the instance of Ultratech Cement Limited, another cement manufacturer, and that orders were reserved in the said petition on 27.07.2023.
2. When the matter came up before this Court, this Court entertained a doubt whether these petitions assailing an order of the Competition Commission passed in New Delhi, must be entertained by this Court. The issue is not so much about maintainability since Article 226(2) vests jurisdiction in the High Court to entertain a writ petition against an order of a tribunal whose situs is outside the territorial jurisdiction of a High Court, provided cause of action, wholly or in part arises within the jurisdiction of the High court. As to the distinction between maintainability and entertainability in the context of Article 226 [See: Godrej Sara Lee Limited vs. Excise and Taxation Officer, 2023 SCC Online SC 95].
3. The issue raised has two parts: (a) Whether any part of the cause of action viz-a-viz the order directing the impleadment of the second respondent has arisen within the territorial jurisdiction of this court and (b) Inasmuch as the Delhi High court has taken cognizance of the same issue in a challenge to the very same order which is now under challenge here, should this court refrain from entertaining these petitions on the comity of court-doctrine. The former relates to the entertainability of the petitions and the latter pertains to the propriety of entertaining them.
4.1 Heard Mr. P.S. Raman, the learned Senior Counsel for Mr. Abishek Jenasenan appearing for the petitioner in W.P. No. 22045 of 2023 and Mr. Vijay Narayan, the learned Senior counsel for Mr. Prahlad Bhat for the petitioner in W.P. No. 22263 of 2023, Ms. Madhav
