Dr. Justice Arijit Pasayat, Chairman. - These appeals involve identical issues for determination and therefore are disposed of by this common order.

2. Challenge in each of these appeals is to the order passed by the Competition Commission of India (‘CCI’) under section 33 of the Competition Act, 2002 (‘the Act’). Each appeal has been filed under section 53B of the Act challenging order dated 20-9-2010 passed under section 33 of the Act. By the said interim order in each case the CCI has restrained the appellant from cancelling allotment to the allottees and from creating third party rights in respect of any cancelled allotment. In each case, the respondent No. 1 (‘the complainant’) has alleged abuse of dominant position in terms of section 4 of the Act in respect of an Agreement entered into by the Apartment Allottees and the appellant relating to purchase of apartment in the residential plot/complexes. It has been alleged that certain terms and conditions of the Agreement are discriminatory. Application was filed for interim order under section 33 of the Act. The appellant questioned the maintainability of the complaint on various grounds. Primarily, it was contended that the Agreements in question were executed in the year 2007 i.e., long before section 4 of the Act became effective on 20-5-2009. The Act is perspective and not retrospective in operation. Conditions of the Agreement were being acted upon for about three years and are now sought to be challenged as contravening section 4 which came into force only with effect from 20-5-2009 with oblique motives. Further, in order to allege contravention of section 4, it is to be shown that the enterprise in question enjoys a dominant position within the meaning of Explanation (a) to section 4. Prior to 20-5-2009, no enterprise could be treated as enjoying a dominant position as defined under the Act. As such, only after 20-5-2009 any enterprise can be said to have imposed conditions by abuse of dominant position. Since the conditions were already existing and were validly incorporated in the Agreements long before the provisions came into operation, the requirements of section 4 cannot be satisfied. Objections in regard to the legality of the proceedings have also been taken.

3. At this juncture, it is to be noted that CCI has issued the direction under section 26(1) of the Act. The direction given under section 26(1) of the Act was challenged before the Competition Appellate Tribunal (‘the Tribunal’) and by order dated 18-8-2010, the Tribunal observed as follows :—

"It is certainly open to the appellant to bring to the notice of the Commission that there is no question of a prima facie case and the petition before the Commission was thoroughly misconceived. The jurisdictional question raised in the present appeal can certainly be highlighted by the appellant when the application for interim order is taken by the Commission. It is open to the appellant to contend, as submitted, before the Commission that the jurisdictional issue should be decided first and further issues can follow. We are sure the Commission shall deal with the stands taken and the relevant aspect in their proper perspective. If the appellant has any further grievance, it can agitate that in an appropriate Forum."

4. It was indicated in the aforesaid order that the jurisdictional issue can be raised before the CCI and prayed that the jurisdictional issue can be decided first. Before the CCI, the jurisdictional issue, it is contended, was raised first on 19-8-2010. Further materials were placed on record on 3-9-2010 and the matter was heard on 8-9-2010 and written submissions were filed. Thereafter, the impugned order in each case has been passed. According to the learned counsel for the appellant, the CCI has erroneously passed an order under section 33 of the Act without taking note of the following aspects :—

"(i)Inquiry not validly initiated under section 26(1) as no reasons are recorded.

(ii)Section 4 in